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One-party workplace investigations: What to do when a party won’t participate

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An investigation usually involves a complainant and a respondent. The basic premise is that as workplace investigators, we hear what each party has to say, collect other relevant evidence, and then weigh the evidence to decide whether, on a balance of probabilities, the allegations are substantiated.

But what happens when one of the parties decides that they do not want to participate in the investigation? It does not necessarily mean that the matter can’t be investigated; the lack of participation, however, does create some challenges, which I address below.

In our experience, while parties may at times decide not to participate, this is not something that happens often. Most parties are aware of the importance of participating and are generally cooperative. As for those who decide not to participate, the reasons for this tend to vary. For example, a complainant may express, after submitting a written complaint, that it would be too emotionally taxing for them to revisit the allegations. Parties may also decline to participate if they have left the organization or there are ongoing proceedings relating to the matters under investigation.

Regardless of the reason, it is important to ensure that the party does, in fact, not wish to participate. If a party simply does not respond to an investigator’s email correspondence, then alternative means of contacting the party should be sought. As external investigators, we may, for example, ask the client to contact the party directly to ensure that they are receiving our communications.

When a party expresses not wanting to participate, the investigator should be transparent with the party and alert them that the investigation may go ahead without them. This is so the party understands that their non-participation does not necessarily stop the investigation. The investigator can also tell the party that if they do later decide to participate, they can let the investigator know.

When it is the complainant (or the person identified as the target of the alleged behaviour) who decides not to participate, a decision must first be made about whether the investigation should proceed. It is possible, for example, that the complainant has submitted a detailed written complaint in which the allegations are clear. In other cases, however, the employer may have heard about potential wrongdoing through the “grapevine” and knows nothing other than very vague information. There may not be enough information for allegations to be formulated which, obviously, would make an investigation difficult.

If a decision is made to proceed, then the investigation would unfold as it normally would – that is, by interviewing the remaining party and collecting witness and documentary evidence. If it is the complainant who has decided not to participate, then their complaint document (or whatever information the employer has about the complaint) would be used to formulate the allegations and obtain a response from the respondent.

In conducting the investigation, the investigator should not accept the remaining party’s version of events at face-value; relevant evidence must still be collected and scrutinized as it normally would be in a two-party investigation.

In terms of the preparation of the report, the investigator should explain in the report that one of the parties did not participate, what was done to obtain their participation, and that they were advised of the possibility of the investigation proceeding without them.

The investigator would then summarize, as they normally would, the evidence for each allegation; again, if it is the complainant who did not participate, whatever information is known about their complaint would be summarized in the report with an indication of the source of that information. For example, the investigator could extract relevant portions of the written complaint.

In terms of making findings of fact in the report, as always, the investigator must decide whether, for each allegation, there is sufficient credible evidence to find that the alleged events happened. While it can be more challenging to assess credibility without the evidence of one of the parties, it is still possible to do so; for example, by considering whether there is corroborating evidence, whether there are any inconsistencies in the evidence of the party, whether the party is prone to exaggeration, whether the party seems to have an “axe to grind,” etc. The main takeaway here, as I suggested above, is that the investigator cannot simply accept as fact the evidence of the party who participated. It may be, for example, that the party is not honest or that there are too many gaps in their evidence (caused by the non-participation of one party or otherwise) to satisfy the investigator on a balance of probabilities.

In sum, while one-party cases may be more challenging, they are by no means impossible; by taking the steps described above, it is indeed possible to conduct a meaningful investigation without the participation of all parties.

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