Investigate even when the respondent refuses to participate

Natasha, July 29, 2019

Ideally, your investigation process goes something like this: you learn of an incident or complaint and meet with the complainant. You meet with the respondent to hear his/her version of events. You interview witnesses and, if necessary, speak to the complainant and respondent again to ask any follow up questions. You write your report and work with any other parties to determine what steps need to be taken. Easy as one, two, three.

But things don’t always go according to plan.

I remember the first time a respondent refused to participate in one of my investigations. What do you do? Do you stop the investigation and wait until they agree to meet? Do you stop the investigation altogether? Do you meet the requests they are making as a requirement of their participation?

There are all sorts of requests that respondents sometimes make. Some are reasonable and legitimate: for example, knowing who made the allegations and what the allegations are well in advance of the meeting; that the meeting take place in a private and neutral location; granting them a short but reasonable period to consult with the union/legal counsel or arrange for a support person and any reasonable requests for extensions of time. These kinds of requests are “no brainers” and, barring unusual circumstances, can and should typically be granted.

However, respondents sometimes make requests that you as an investigator decide can’t be granted in the circumstances. What if the respondent is refusing to participate unless you give them the questions in advance? Unless they can be asked and answer the questions in writing rather than meet with you? Unless their lawyer can attend and answer for them when they wish? Or unless they can bring a support person who isn’t appropriate to attend the interview? If a respondent is requesting something that compromises the overall fairness or integrity of the investigation process, it won’t be possible to agree.
If the respondent ultimately refuses to participate, as the saying goes: the show must go on. And so must the investigation. A respondent’s refusal to participate could halt the investigation process indefinitely or permanently, and can create issues of procedural fairness to the complainant. The resolution to the complaint would be delayed or completely frustrated. As memories fade, the reliability of people’s evidence also becomes less reliable.

Recently, the Senate’s ethics officer found that ex-senator Don Meredith harassed several employees and a constable in the Senate’s upper chamber. The report said Meredith bullied, threatened and intimidated his staff and repeatedly touched, kissed and propositioned some of them. Although Meredith attended two initial interviews, neither he nor his counsel responded to offers to participate in the latter stages of the investigation when the ethics officer requested to meet with him to ask about new information. Meredith claimed he was denied procedural fairness when the investigation continued without his participation.

Can you investigate and maintain procedural fairness when the respondent refuses to participate? Yes, you can. First, you grant reasonable requests the respondent makes as a requirement of their participation. Put yourself in the respondent’s shoes: what would feel fair to you? And ask yourself: would granting the respondent’s request compromise fairness to other parties or impact the integrity of the investigation? If not, the request should probably be granted.

Second, give the respondent several opportunities to participate, offering them dates to meet and providing a reasonable period of time to respond to each offer (at least a week each time), again granting reasonable requests for any extensions of time. Let the respondent know that you would prefer to have the benefit of hearing their version of the events but the investigation will proceed even if they refuse to participate. Offering the respondent the opportunity to participate ensures that procedural fairness can be fulfilled even when the respondent ultimately refuses to participate.

The takeaways:

  1. A respondent’s refusal to participate in a fair and objective investigation process does not frustrate the investigation. The investigation still can and must be conducted.
  2. Grant reasonable requests by the respondent regarding requirements of their participation.
  3. Respect fairness to all parties and the integrity of the investigation in determining which requests can be granted.
  4. Offer the respondent several opportunities to participate, noting that you would prefer to have the benefit of their evidence but the investigation will continue with or without their participation.

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