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It all starts with a complaint…

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The complaint is typically the originating act of any workplace investigation. It is the “code red” that activates a series of mechanisms, from the assessment of its seriousness by the employer, to the ultimate decision on how to address it. My colleagues and I refer to the complaint informally as the “hot potato” to illustrate the urgency it warrants.

A complaint can be oral or written. This can be explained, in part, by the fact that some organizations require a complaint to be in a particular format to be considered officially received (a written document, a specific form, etc.) while others do not. For these other organizations, something as informal as a phone call, a comment made during a discussion with a member of the management team, or even a voicemail, may be enough to qualify as a complaint. In other words, when an employer’s policy does not require a written complaint, the format of the complaint will ultimately depend on the preference of the complainant.

Once an investigation is initiated, the way to handle a written or oral complaint is fundamentally the same. Notwithstanding the existence of a written complaint, the investigator should attempt to interview the complainant. A written complaint rarely includes all of the necessary details to formulate the allegations that need to be presented to the respondent. It boils down to the “when, where, and how” of the alleged events. The interview will make it possible for the investigator to collect and confirm the details of the complaint and assess the credibility of the complainant based on the answers provided (more on credibility in the paragraphs that follow).

Though fundamentally the same, the written complaint does have its advantages, which I discuss below, that an oral complaint does not have.

First, where the complainant refuses to participate in the investigation,1 a written complaint, even one lacking critical details, can be used as evidence of the complainant when drafting the allegations as well as the report. It is better to have some evidence upon which to rely, rather than to have no evidence at all.

Second, at the initial interview stage with the complainant, a written complaint gives the investigator an idea of what is alleged, the number of allegations, and perhaps some particulars about the incidents in question. For this reason, a written complaint can serve as a guide for the investigator in preparing questions to ask the complainant. The aim of this interview with the complainant will be to collect the missing elements of the allegations and to ensure that the investigator understands every aspect of the written complaint.

More significantly, as suggested above, a written complaint can help an investigator in assessing the credibility of the complainant. First, the written complaint can serve as corroborating evidence when it is written contemporaneously to the alleged events. A complaint that was written, for example, just a few hours after the events, could provide an accurate account of what transpired. The contemporaneous written complaint can add to the credibility of the complainant if it is consistent with their oral evidence. It is, therefore, necessary to determine when the complaint was written.

In addition, an investigator can assess the credibility of the complainant by comparing the complainant’s oral evidence to the written complaint, regardless of when the complaint was written. The question is whether the details of the allegations described in the complaint are similar to those shared by the complainant during their interview. An inconsistency between the written complaint and the oral evidence must be material in order for it to negatively affect the credibility of the complainant. It could be, for example, a significant difference in the stated duration of an incident, its seriousness, the words used, its frequency, and/or the sequence of events.

The way to address such an inconsistency between the written complaint and the oral evidence is to first question the complainant about it (if possible). How the complainant justifies a difference between the written complaint and their oral evidence can be an element in evaluating their credibility. A plausible explanation for an inconsistency may negate any negative impact on the credibility of the complainant’s evidence, while the absence of an explanation or a denial that such an inconsistency exists may contribute to the investigator finding that the complainant’s evidence lacks credibility.

In terms of addressing an inconsistency in the report, the investigator can summarize the oral evidence of the complainant first, then indicate points where it diverges from the written complaint, and also provide the complainant’s explanation, if there is one, for the inconsistency. Finally, the inconsistency should be addressed in the findings of fact – either to indicate that it had no material impact on credibility, or conversely, that it contributed to the investigator’s finding that the complainant’s evidence was not credible.

To conclude, though complaints can be oral or written, it is undeniable that a written complaint presents advantages in an investigation, mainly as a starting guide for an investigator, and as a means to evaluate credibility. To that end, this blog provides clues and ideas on how to best use a written complaint at each stage of the investigation.

1 For an interesting blog on how to deal with lack of participation in an investigation, take a look at my colleague Liliane Gingras’ blog, “One-party workplace investigations: What to do when a party won’t participate.”

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