In this article, we explore the main steps of managing an administrative investigation in the workplace and explain the contexts in which mandating an external firm is appropriate.
When receiving a report, complaint, or information relating to harassment, an employer must follow a rigorous process to ensure effective and rigorous management of the file, including the following key steps:
The employer must implement a policy relating to harassment in the workplace, including the process for filing a complaint, reporting, or providing information about harassment, as well as the identity of the person designated to receive them. That person must treat all complaints in a confidential, serious, and diligent manner.
When the person designated by the policy is contacted, they must ensure compliance with the policy in place. They must first consider whether the information obtained is complete and then should contact the reporting party or the complainant to clarify the report or complaint, confirming that the file is complete. While respecting confidentiality at the highest standard, they must assess the next steps, such as implementing temporary measures and conducting an investigation.
At this stage, they should not inform the respondent. They must ensure that the file is complete and that the physical and psychological integrity of the employee(s) is protected.
Depending on the circumstances, it may be necessary to implement temporary measures in order to prevent further incidents or attempts to interfere with the investigation, or to reduce tensions before the employer reaches a conclusion and definite decision. Some employers choose to :
- Suspend the complainant or respondent with pay;
- Request that the complainant or respondent works remotely;
- Change the hierarchal link between the parties, for example, if the complainant usually reports to the respondent;
- Request that the complainant and respondent do not communicate;
- Change project assignments to avoid the parties having contact with each other.
In various situations, it’s advisable to assign the investigation to an external firm. For example, when there is a perception of bias (targeting senior management, a member of the board of directors, the human resources department, loss of trust in the employer), when the situation is complex (cross-complaint, multiple parties involved, multiple witnesses, work leave), or when there’s a strong possibility that the case will be challenged in court.
The mandate must be clearly defined with the external investigator, including its scope and the type of report expected.
The reporting party or complainant is formally informed that a neutral and impartial third party has been appointed to conduct the investigation. The notice must include the investigator’s name and contact information. At this stage, the accused party does not need to be notified, as no determination of admissibility has yet been made.
During this key step, the investigator meets with the reporting party or the complainant to identify the allegations. Each allegation should identify a date or time period, an event, and a location.
Once all the allegations are identified, the investigator will verify whether the report or complaint meets (1) the preliminary admissibility requirements (time limitations) and (2) all the criteria of the definition of harassment, if we consider the facts to be proven.
Depending on the conclusion of the admissibility, the investigation process will either cease or continue.
If the allegations are admissible, an investigation should be conducted. At this stage, the respondent should be informed of the complaint or report against them, if no temporary measures were previously implemented.
An investigation is generally conducted through interviews, either in person or by videoconference, and the collection of other evidence (documents, emails, text messages, etc.) The investigation continues with an analysis of (1) credibility, (2) the factual basis of the allegations, and (3) the findings on each of the criteria defining harassment.
The employer may request a detailed report or an executive summary report. It may also request a letter to management, the board of directors, or the human resources department, summarizing the findings of the investigation.
The employer must inform the parties of the findings of the investigation. It may decide to do it directly or request the investigator to do so. The discussions with the parties must be well prepared and ensure confidentiality.
Based on the findings, administrative or disciplinary measures could be implemented.
Why choose an external investigator?
The use of an external investigator is advantageous for numerous reasons :
- Neutrality and impartiality : An external investigator guarantees an objective analysis, without conflict of interest or bias.
- Specialized expertise : Investigators are professionals that are trained to conduct interviews, respect confidentiality standards, analyze fact, apply the relevant legal framework, know case law and doctrine, and write clear reports.
- Faster turnaround times: The investigation process will have no impact on the often already heavy workload of your team, which often allows for faster processing of the file.
- Increased credibility : An external investigation reinforces employees’ confidence in the process and the employer’s commitment to acting rigorously.
As an employer, you have a key role to play in preventing and managing complaints. Please do not hesitate to contact us to learn more about our services:
514.617.3019
