Make sure your investigations are fair
December 15, 2022
Workplace investigators must ensure that parties to an investigation are afforded due process. Due process requires investigators to use established rules and principles during investigations, like ensuring that they are impartial to the parties.
Why is due process important? Because it helps ensure fairness. If you are not following an investigation procedure or don’t apply the same procedural steps to all parties, then parties may be treated unequally.
Some employers feel the urge to extract confessions from respondents by interrogation or by providing them little time to review or answer allegations. Some feel that providing due process will only provide respondents more time to devise a believable lie. But this assumes that respondents are guilty of the allegations, which is unfair because the opposite may be the case.
And if you don’t follow due process, you could be sued. Although usually in extreme cases like allegations of criminal wrongdoing, there have been instances in which courts have found an investigator liable to those affected by the investigation. Courts have emphasized the fairness of the investigation process, rather than whether the investigator’s findings were wrong.
So how do you ensure due process in investigations? Here are some considerations:
- Avoid ambushing parties: Respondents, especially, must know the case against them. They should be provided the name of the complainant, enough time to prepare a response, enough time to tell their story and an understanding of the allegations. The more serious the allegations, the more details should be provided. But unlike court cases, respondents in workplace investigations are generally not entitled to all the evidence against them, like witness statements. So investigators should be careful to provide enough information to respondents so they can adequately defend themselves, while balancing other considerations like confidentiality.
- Choose investigators wisely: Investigators should not have a vested interest in the outcome of the investigation. It helps if investigators don’t know the parties they are investigating or share long working histories. Avoid using investigators that are friends or family of any of the parties. Although a human resources representative may investigate complaints, it should be avoided if the representative has been addressing a conflict for some time and has developed biases about the parties. Investigators should be adequately experienced and complex or serious allegations should be investigated by seasoned investigators. Consider using an outside investigator if you don’t have a sufficiently trained investigator, an impartial investigator or if the outcome of the investigation could benefit or harm your organization.
- Avoid unnecessary delays: In Ontario, investigations should be completed within 90 calendar days except in extenuating circumstances. Needless delays may result in lost evidence, unnecessary costs (especially if parties are on paid leave) and harm to the parties. Respondents may be under great stress because of the allegations, and a delayed investigation can compound that stress.
Ensuring due process may not guarantee that your findings are accurate, but it will help ensure that your investigations are fair. If you are an investigator and you need assistance developing a fair process, check out the Ontario Ministry of Labour’s Code of Practice. The Code of Practice helps employers comply with the harassment provisions of the Occupational Health and Safety Act, and can be found here.