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Investigating counter-complaints: A roadmap

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So, you found yourself dealing with what appears to be a counter-complaint in the investigation you are conducting. Before embarking on this bend in the road, the first step, and likely the most obvious, is to confirm what you are dealing with and whether it affects your mandate.

A counter-complaint is a complaint made by a respondent in response to a complaint against them. What differentiates a counter-complainant from a respondent’s reply to a complaint against them is that it contains allegations against the complainant that, if true, could breach company policy. These new allegations may be related or not to the same events of the original complaint.

A counter-complaint can occur at different stages of the investigation process, from its onset to near the end. It can be verbalized in an email, interview, or any other format. Once identified for what it is, namely, a counter-complaint, the next step is to seek instructions on whether this affects your mandate. If you are an external investigator, like me, it means checking with your client.

The routes are finite in this scenario. Either your mandate is expanded to include all or some of these new allegations – the scenario I discuss below – or it is not. In the latter case, you are back to investigating the initial complaint after advising the respondent of the limits of your mandate in writing.

The First Stop: The Investigation Plan:

The first stop is to check the applicable policies for any procedural steps or requirements related to counter-complaints and re-adjust your investigation plan accordingly.

The Second Stop: Communicating with the Parties:

The second stop is to inform the relevant parties in writing of your new mandate, and to provide the initial complainant (now also a respondent) with the new list of allegations against them. This is to ensure fairness. Depending on when the new mandate is communicated to them, you may have to re-interview the initial respondent and/or the initial complainant to obtain details about, and respective responses to, the counter-complaint.

Regardless, interviews with the parties must be designed to thoroughly collect the evidence available on this new complaint. Disclosing, in advance, any documentary evidence to the party responding to a counter-complaint will add to the transparency of the process.

Most of the time, expanding the mandate to include a counter-complaint will entail a lengthier investigation. Although the parties might have surmised that much when you informed them about your new mandate, communicating this to them in writing will reset their expectations on the duration of the investigation.

The Third Stop: Tread carefully with witnesses:

Caution should be taken when interviewing or re-interviewing witnesses to avoid unnecessarily disclosing information about the counter-complaint. It is not unusual for a witness to come to their interview already knowing what a complaint is about and the identities of parties. However, as with a typical investigation, you are the confidentiality gatekeeper. Therefore, you should provide as little information as possible to witnesses about the reasons for re-interviewing them.

The Fourth Stop: The reply interview:

The reply interview, one of the last stops in an investigation, also presents its challenges. A reply interview should be provided to allow a fair opportunity to each party to address any evidence that contradicts their version of the event. Creating a chart to keep track of all the evidence—organized by allegation and counter-allegation—can help an investigator navigate the evidentiary complexities often associated with counter-complaints. It also helps the investigator quickly highlight areas of inconsistencies which will be the focus of the reply interview.

The Final Stop: Drafting the Report:

As you are heading towards the last stop of your journey–drafting your report–you should remain alert to the particularities of dealing with a counter-complaint. Drafting a digestible and readable report in such a context can quickly become a challenging undertaking.

One way to orient the reader is to have a section early in your report that provides an overview of the allegations. You can do this by briefly summarizing the complaint and the counter-complaint.

Where a counter-complaint relates to the same event as the initial complaint, one approach that makes sense for reasons of conciseness and clarity is to summarize the initial complainant’s evidence (ie. their version of events and their response to the allegations against them) under one heading, and then do the same for the initial respondent under a separate heading.

When reporting the witnesses’ evidence – specifically the ones having knowledge of both the complaint and the counter-complaint, start with their evidence on the initial complaint before addressing the counter-allegations. This will maintain coherence and uniformity in how the two complaints are addressed throughout the report.

Where the counter-complaint relates to a different incident or series of events than the original complaint, the easier path would be to address them under separate (sub)headings about the complaint and the counter-complaint.

Regardless of your decision on the structure of the report, clearly communicating to your reader your reasons for proceeding in one way or another is critical.

You are now set to deal with a counter-complaint. Good luck!

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