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Managing your mandate in a workplace investigation

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As workplace investigators, we have all been there…we thought there was just one allegation. We had visions of an easy, straightforward, and speedy investigation. But then you meet the complainant and when you ask them, “Is there anything else?” it turns out there is much, much more.

Given the very nature of workplace harassment, and workplace relationships generally, it should not surprise us that someone’s history with a co-worker cannot often be condensed down into a few discrete allegations. Many times the issues between employees have been brewing for years and years, and there are a myriad of examples that they are willing to share, and indeed have been waiting to share. So what do you do once you’ve left an interview with a complainant and you have pages and pages of notes and no idea where to go from there? Below are some tips to guide you in keeping a handle on the scope and size of your investigation.

1. Separate out feelings from evidence

My colleague Janela Jovellano has previously written about this issue here. A first step in wading through your notes from a complainant interview is separating out their evidence regarding a respondent’s alleged conduct from their feelings about the alleged conduct. For example, a complainant describes to you an incident of the respondent yelling at them, and then goes on to describe how the respondent made them feel demeaned and belittled. The yelling incident is the allegation, not the feelings of belittlement. While these feelings are important contextual information for your investigation, they are not evidence. Your allegations should stick to alleged factual conduct by a respondent.

2. Threshold Question – if true, does the conduct amount to harassment?

Once you have a list of allegations, the first thing to consider is whether the allegations if true amount to a breach of company policy or applicable legislation. While a complainant may have many examples of what they consider inappropriate behaviour, if the allegations do not on their face amount to harassment (or another form of misconduct under the policy), then there may be no need to investigate the allegations further. This does not mean that the concerns are unimportant, just that they might be better addressed through a different process. For example, the conduct at issue could be legitimate performance management or merely an interpersonal conflict. Reviewing the definitions of workplace harassment in the legislation and/or in your policy and comparing those definitions to the behaviour at issue is an essential step in deciding what is in and what is out of your mandate.

3. Time Limit – how far back are you willing to go?

Where a complainant is raising a multitude of concerns that date back many years, consideration should be given to the historical nature of some of these concerns and creating a “cut-off” point. Of course, this should be evaluated on a case-by-case basis. Some serious allegations – for example of sexual harassment and other forms of sexual misconduct– may only come to light many years later because the complainant was not previously comfortable coming forward. Such cases would obviously not be suitable for a “cut-off” point.

4. Has this already been investigated?

This consideration goes hand-in-hand with the previous factor. Where allegations are dated, consideration should be given to whether the allegation was already investigated or dealt with in some other way, whether formally or informally.

5. Concerns outside of scope can be noted, and returned to later if needed

We have encountered scenarios in the past where some allegations are investigated, and other allegations are “tabled” and then revisited after the first set of allegations have been looked into. This scenario may be appropriate where the “tabled” allegations concern a completely separate category of misconduct. For example, in the course of raising allegations of harassment against a respondent, the complainant also makes an allegation that the respondent forged documents. It may make sense to deal with the harassment allegations first, and then depending on outcome, revisit the forgery allegations afterwards.

6. When in doubt, farm out the investigation.

Sometimes investigations are complex and the mandate cannot easily be reined in. In these scenarios, consideration should be given to whether outsourcing the investigation to an external investigator is appropriate. An external investigator may have the time, resources, and expertise to get a handle on an unruly investigation.

Conclusion

Establishing your mandate and what exactly you are investigating is an important, but often overlooked, step in the rush to get an investigation started. The next time you are overwhelmed by the concerns in front of you, pause and consider these tips to better manage your investigation. It will pay off in the long run!


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