While you’re here, you may wish to attend one of our upcoming workshops:
Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
Whether you are an internal investigator, or an external one, producing a report at the end of the workplace investigation process can be difficult and daunting. Over the years, we have produced many many reports, and we have reviewed many many others. We’ve also had the benefit of talking about how to write a report within our group of investigators. Here are some of our best tips for effective workplace investigation report writing that are based on our collective experience.
- Always assume that you are writing for a third party
When an investigator sits down to write his or her report, he or she likely has an immediate audience in mind. For internal investigators this might be their supervisor, or the head of human resources or internal legal counsel. For external investigators, this could be internal or external counsel, or the board of the institution for which they are producing the report.
We encourage investigators to imagine all of the potential “other” third parties who might read their reports. This could be the parties themselves, their union, their legal representatives, legal decision makers such as adjudicators, arbitrators and judges, or even (as has happened to us a few times) the public. That means that the investigator should always use a respectful and professional tone, carefully measure how much personal information of the parties needs to be included if it is sensitive, and be thoughtful about the language he or she uses to describe the parties’ and witnesses’ credibility and reliability. For example, it would be highly unusual for us to say that a party is intentionally lying or misleading. We save this language for only the clearest of cases. Instead, we will often say that we prefer the evidence of one party to the other because it is clearer, or there are inconsistencies, or there are gaps in it. Moreover, there are certainly times when we believe that the party him or herself believes that they are telling the truth, but their truthful subjective account of what occurred does not measure up objectively. We will use that type of language as well.
In addition, investigators should take great care in producing their reports. This means not only thoughtful consideration of the content, the style used, the flow, but other more basic things like spelling, spacing and organization.
- Organize the report for the benefit of the reader
This can include making liberal use of sub headings, numbers, letters, appendices or anything that will break down the report into digestible chunks. We prefer descriptive headers – for example “events at the holiday party” rather than numbers for allegations – “allegation number three” – as we find it helps readers remember what they are reading. It is also very helpful when it is copied into a table of contents, which, when the investigator is writing a longer document, is also very useful. And, I make this request as a person who is no longer 35. Be kind to your readers when choosing a font size. We use 12 point ourselves, and we try to double space most things.
- Information about the process is as important as the facts and the analysis
What the investigator did to conduct the investigation, and when he or she did it, is important information. It will show, among other things, whether the process was fair, was thorough, and was timely. The investigator should be transparent about these issues.
In addition, investigators should be clear and explicit about what is a standard part of their process. It is easy to forget to include things that you do by rote, but they remain important to the overall process nonetheless. Things that fall into this category would be the request the investigator made of everyone he or she interviewed to keep the fact of the interview, and things discussed within it confidential, the standard of proof used, the opportunity for unionized parties to have their representatives with them, and providing advance notice of the allegations to the respondent.
Some investigators find it helpful to create a report template, which can be used and modified for each investigation that they do. These consistent process elements can be included right within the template itself. The investigator just needs to make sure that they are followed in each investigation.
- Double check that the correct process was followed
Some investigators conduct their investigations under an institution’s stated workplace investigation process. When preparing their reports, they may discover that they did not follow the institution’s process properly. Even absent this type of policy, the investigator may find that he or she missed interviewing a witness, and that this evidence is missing. It is better to know about process issues at this stage, than discover problems after the report is rendered. Most often, a process gap can be corrected, especially if the investigator provides an explanation to the parties.
- Think symmetrically
To ensure that the investigator has been fair and balanced towards both parties, as well as sufficiently thorough, the report should be symmetrical. What we mean by that is that if the complainant has made five allegations, and the investigator has the complainant’s evidence in relation to each of these allegations, it is important that the investigator has the respondent’s response and evidence in relation to these allegations as well. It is not uncommon for investigators to get to the review stage and find that this has not been achieved, and there is information that is missing. Our best advice is to go back to the party whose evidence you are missing and fill in the gap. This can be done in a telephone call, or if it is minor, an e-mail, or even a follow up interview. What the investigator should not do is ignore the gap, or make a finding of fact regardless of it. This would be a serious mistake.
- Clearly tie the finding of fact to the evidence
The reader of the report should not be left wondering how the investigator made a finding of fact. The investigator should have evidence to do so, and the investigator should tie it to the fact he or she is found to have occurred. If there is conflicting evidence, but the investigator does not find it material, or they prefer one version of events to the other, in making your finding of fact, the investigator should say so. There should be no mysteries or head scratching in this section of the report.
- Use of definitive language
Most mandates will include making findings of fact, and will often include applying those facts to the law or a policy. Workplace investigators should do a good job, and assuming they have done so, shouldn’t be wishy washy about their thinking. We prefer the use of language such as “I find” or “I have determined” or “Based on all of the above, I have concluded that” instead of “perhaps” or “It is possible that”. If the investigator is using less definitive language it should be an accurate reflection of his or her conclusions – that is that the investigator is not certain whether something occurred or not. It should not be because the investigator lacks confidence or there are gaps in the evidence that can be remedied by the investigator.
- Use the language of the policy or the law
Much the same way the investigator needs to tie the findings of fact to the evidence, he or she should tie the evidence to the specific provisions of the applicable policy or law. Again, the investigator does not want their analysis to be a mystery. How and why the investigator reached the conclusion that a policy was breached should be obvious and easy to follow within the report. If thinking and writing this way is new to investigators, a helpful tool is to list all the reasons the investigator believes, on the evidence, that the policy or law was breached. This can be included in the analysis section within the report itself. If it is clear to the investigator, it will be clear to the reader. If the investigator has engaged in fuzzy thinking, that will also be clear to the reader.
Here is an example of how the investigator might do this – supposing the applicable policy states that workplace harassment is “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Suppose that the investigator’s finding of fact on the evidence is that the complainant made it absolutely clear to the respondent that the behaviour in question – let’s say name calling in public – was unacceptable. The investigator might write something like, “ I have found that the respondent repeatedly called the complainant unflattering and embarrassing names in public and that on several occasions, the complainant told the respondent that he did not like this, and directed her to stop. Therefore, I have concluded that this is a course of vexatious comment and conduct that was absolutely known to the respondent to be unwelcome”.
- Proof read, proof read and proof read again – and then ask a colleague to proof read
We do not have much more to say than that. Each time we proof read a report, we find missing words, annoying typos, formatting problems etc. We have also found that becase we are so close to the report, our brains don’t always pick up on everything, which is why it is so useful to have a colleague who can read it with a fresh set of eyes.
And just to test your proofreading skills, did you find the typo in this section?
- Give yourself sufficient time and space to write the report
Writing a report takes a lot of time. Writing a strong report that you are proud to put your name on, and in which you are confident, takes a huge amount of time. Moreover, you can’t write a report off the top of your head, particularly if you are dealing with something that is complex. Investigators need time to reflect on what they have heard and how all the pieces of the investigation fit together. This needs to be included in the time allocated for producing the report as well.
In our group, some of us are able to write the report as they go along (we call these the “tree people”). They like to document each party’s evidence as they go along. Some of us (we are the “forest people”) need to see the whole picture at the end, before we start writing. We have discussed this amongst ourselves and we have concluded this is really a matter of personal style. Whatever arboreal category you fall into, investigators should remember that the report may need to go through several versions before it looks the way you want it to look. Leave lots of time for re-writing.
- Consider dissemination
Once the report is done, think about who will get a copy of the report, and how will they get it. Will it be distributed electronically? If so, consider encrypting it or putting a password on it. It should also be in PDF form so that it cannot be tinkered with. If the report is being circulated in a hard form, consider how many copies to produce and numbering them. Moreover, we mark our reports “Personal and Confidential” and/or “Not For Distribution” on the front page, but often on the top of each page of the report as well. You can do this through a watermark if you prefer. Whatever the investigator chooses, he or she should be absolutely clear on the face of the document that it is sensitive, that it is confidential, and that is not for distribution.
 There is a missing “u” in because.
About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.