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Unfortunately, for those of us who support employers through workplace investigations, it is almost inevitable that one day, a truly terrible workplace investigation report will land on our desks. These reports may be prepared by people internal to our clients’ workplaces, or they may be prepared by an external investigator.
What do I mean by a terrible report? It is often one that contains these types of critical errors:
1. Mandate Unknown
The investigator does not tell you what his or her mandate is. In fact, it is a deep mystery. The investigator simply says that they are “investigating”. Often there is a limp declaration at the end of the report that what the investigator reviewed is or isn’t harassment.
Reading the report, you should know what the investigator intended to do. The mandate might be to simply find facts or it may be to relate those facts to a law and or a policy. By the way, it is important to make a distinction between the law and the policy because there are instances where certain facts may not constitute workplace harassment under the Bill 168 definition, but might satisfy a policy definition that has a slightly lower bar.
2. Mandate Creep
Good investigators need to exercise solid judgment throughout the process. They need to think about what the outcome will be of every process step they take, and whether it will be fair to the parties involved. They should also avoid the temptation of adding on to their mandate every time an “interesting” workplace issue is revealed. If your mandate is to investigate Sheila’s sexual harassment complaint, stick to that. Don’t wander over to whether there is a systemic violation of ESA overtime provisions in the shipping department. That should be left for another day.
In our workplace investigation training, we refer to these “interesting” issues as “flying shiny HR objects”. They will grab the undisciplined investigator’s attention, but ultimately distract him or her from the job at hand.
3. Automatically characterizing an unsubstantiated complaint as one made in bad faith
There are all sorts of reasons why a complaint may be unsubstantiated. Often, a complainant may have an honest belief that certain actions of a respondent constitute harassment, and, when viewed through the objective workplace investigation lense, do not meet the definition of this type of behaviour. Perhaps the complainant’s memory is flawed. Perhaps they are exaggerating or telling a version of events that is self-serving.
This does not automatically equate into a complainant who is intentionally lying, nor does it automatically equate into a complaint made in bad faith. In fact, to characterize a complaint in this fashion is to take an extraordinary step, and if it’s wrong, particularly if the organization then disciplines the complainant, the organization is left vulnerable to a charge of reprisal. Bad faith is a very high bar to meet, and based on the cases we investigate, only an infinitesimal number of unsuccessful complaints are properly viewed in this way.
4. Conclusions not supported by the evidence
It is extraordinary to me how often I get to the end of a report and I am left wondering how the investigator could have possibly reached that conclusion based on the evidence that is in the report. Even worse, I wonder how the investigator could have possibly reached that conclusion based on the evidence that is not in the report. I recently read a report where a finding of fact was made that two colleagues had a fist fight at work. Problem was that this finding was made after the investigator interviewed only one of the employees but not the other.
At the end of the day, you should be satisfied with the investigator’s conclusions, and how he or she got there. You should be even more satisfied that if challenged, this report will be defensible.
Let me now turn to what to do if you have such a report. Sadly, a poor report, which usually follows a poor investigation, is eventful and cannot be undone. It may add to liability the employer may already have vis-à-vis the complaint, or, it may create independent liability.
However, there are a number of strategies that can be considered to mitigate the damage:
1. The Investigation Do-Over
Yes – you read that correctly. You get to do the whole thing over and pay for it a second time! This is best done with the agreement of all the parties, as opposed to something that is imposed on the complainant. If the investigation process has seriously alienated the complainant, it is probably best to get an agreement on who the “do over” investigator will be .
2. The Investigation Makeover
Can the report be fixed? Of course, it would be wrong to direct the investigator to change his or her findings, but sometimes an investigator can be prompted to improve the flaws in the report when the client or the client’s counsel asks questions or suggests additions or deletions that will clarify the report. For example, I think it is perfectly appropriate to say to an investigator, I did not understand how you reached your conclusion that “x” occurred. Could you expand, or better yet, explain the evidence you relied on?
Keep in mind, though, that when you engage in the investigation makeover, your correspondence may not be privileged, and, the “before” report as well as the “after” report may not be privileged either.
3. Negotiate Around It
This is extremely difficult to do, and you may need to be a gymnast in addition to being a lawyer, to do this successfully.
If it is clear that someone wants to depart the workplace either as a result of the investigation, or as a result of the events leading up to it, it is sometimes possible to discuss a graceful exit without reference to the report you have on your desk. Keep in mind though, that you need two willing parties to do this; the party who wants to leave, and the employer who is prepared to pay them to do so.