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“Where do we go from here?” How to proceed when evidence from a party is unavailable

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In the normal course of a workplace investigation, the investigator interviews the parties and the witnesses, obtains relevant documents, conducts follow-up interviews where needed, and then drafts a report using the evidence gathered. However, as we have experienced time and again, investigations do not always follow this traditional roadmap, and they can take some unexpected twists and turns, especially where the evidence of one of the parties is not available. Below we have set out some common scenarios that veer from the traditional investigation path, and some tips on how to proceed.

Scenario #1: There is an anonymous complainant

The reasons for anonymous complaints are numerous and this type of complaint can be challenging.1 So what to do with it? In a best-case scenario, the anonymous complainant provides sufficient detail that the employer can either ascertain the identity of the complainant or provide sufficient particulars to which a party can respond, and can then move the process to a traditional investigation.

However, in some instances, the complainant may not be easily ascertained, or the issues raised in the complaint are too vague to be fairly put to a respondent. In these situations, the employer may wish to consider undertaking a workplace assessment or survey to “take the temperature” of the workplace. By doing so, the employer may be able to identify issues and develop recommendations or strategies to address those issues. Furthermore, by undertaking an assessment or survey, it may be that the anonymous complainant participates in the process, has their concerns at least considered, or sees that their concerns are proactively being addressed.

Scenario #2: The complainant has left the workplace

We often come across situations where, at the time the investigation commences, the complainant is no longer employed by the organization. In this situation, we suggest still trying to contact the complainant for an interview. The complainant may still wish to provide evidence about their concerns and may be even more willing to participate in the process because they no longer fear reprisal for having done so.

However, if the complainant does not respond to requests to participate in the investigation, then next steps could look similar to what we discussed above in scenario #1 with the anonymous complaint: the investigator should consider whether there are enough details in the complaint to proceed; if there are insufficient details, the process may either cease at that stage or move to a more non-traditional process like an assessment.

Something to consider with these types of complaints is whether the allegations, if true, would amount to a prima facie breach of the policy and if it would be fair to the respondent(s) to proceed. In addition, the employer may wish to consider whether the complainant had an ulterior motive for raising the complaint as they were leaving the organization and whether it appears to have been brought in good faith.

Scenario #3: The non-participating respondent

A respondent may decline to participate in an investigation, citing concerns about the process and/or a desire not to provide evidence that might reflect poorly on them. Alternatively, the respondent may have left the organization, or their employment may have been terminated for reasons unrelated to the investigation and have no obligation or incentive to participate.

Even where a respondent is unavailable, employers may still wish to proceed with an investigation for a myriad of reasons (to ensure the complainant’s concerns are heard, to ensure they are complying with any legislative obligations, and to ensure a safe work environment in the event the respondent seeks to return to the workplace, among others). If an investigation does proceed in the absence of the respondent, the investigator can still make findings of fact on a balance of probabilities standard. The investigator will have to rely on their credibility assessment of the complainant and any other sources of evidence they are able to obtain, including witnesses and documentary evidence. As in all workplace investigations, the investigator’s assessment of the evidence must be based “on clarity, consistency, overall plausibility of the evidence in the context of the other evidence… and most importantly, what appears to have most likely occurred having regard to all the evidence.”2

Takeaways

When an investigation cannot proceed in the normal course because the complainant or respondent is unavailable or unwilling to participate, there are still ways to address the concerns raised in a fair and defensible way.


1 See my colleague Katharine Montpetit’s previous blog, “The dilemma of the anonymous complaint”

2 Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2018 CanLII 89086 (ON LA)


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