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Recommendations for conducting unbiased workplace investigations

By Paula Kulig, AdvocateDaily.com Contributor

An organization that decides to conduct an internal investigation when a harassment complaint is lodged by an employee must ensure that it’s carried out by unbiased, trained personnel, says Toronto workplace violence consultant Denise Koster.

“Often by default, people in certain positions within an organization, such as human resources or a senior manager, end up being assigned the task of investigating an incident. But they don’t necessarily have the training or the skills or time to conduct a thorough and meticulous investigation,” says Koster, founder and principal of Koster Consulting & Associates.

“An investigation isn’t just about asking questions and taking answers. It’s much more complex than that.”

Koster conducts independent external probes into workplace harassment and provides training for organizations so they can create unbiased internal teams to conduct them. She says it can be very difficult to do an unbiased internal investigation when a complaint involves a senior manager and a subordinate because there’s a perception that an HR department is always on the side of management.

“If it’s determined that an internal investigation is feasible, my No. 1 recommendation is to make sure that the internal person — or team — has the skill and the core competencies to conduct it. Once an investigator or investigation team is assigned, they must follow the organization’s internal harassment policy and procedures,” she tells AdvocateDaily.com.

The internal investigator must also consider relevant legislation, such as Ontario’s Human Rights Code and the Occupational Health and Safety Act, she says. “The legislation does not give an organization a choice. They’re mandated to investigate any complaints pertaining to workplace violence or harassment.”

It’s also highly recommended that anyone conducting an internal probe have no blood or reporting relationship with any of the parties involved in the complaint in order to keep it unbiased, Koster says, adding that managers or supervisors should not be scrutinizing their own staff.

“I also recommend that organizations have a statement of ethics for the individual or team tasked with the job that declares that they have no bias or conflict of interest in the case,” she says.

Once an internal individual or team has been put in place, Koster says, there are a number of best practices that she recommends should be followed.

— An employee who has been named as a respondent in a harassment allegation should be notified in writing and asked to sign a document indicating that they’re aware of the complaint. The document should contain a confidentiality clause that includes that any information shared (verbally or in writing) is to be kept confidential and not to be discussed during or after the process (through any form of communication including social media) with anyone with the exception of human resources, legal counsel, union representation, personal physician or the police.

— The respondent should be placed on a paid leave of absence in order to preserve the integrity of the investigation, not because there’s a presumption of guilt.

“The bottom line is someone needs to go home during the investigation, and that’s the respondent, not the complainant,” Koster says, adding the person who made the allegation is free to go home voluntarily.

— If the police become involved in the matter, the internal investigation should stop in order to avoid interfering with a criminal probe. Permission should be obtained from the police in order to proceed.

— Before conducting interviews, evidence should be collected and reviewed. That includes work schedules, policies and procedures, photos and videos, if available, emails and text messages. “The investigators need to know more about the case than anybody else,” she says.

— The complainant should be the first person who’s interviewed, followed by the primary witnesses and then the accused employee. Koster says the investigator “needs to have all the facts before interviewing the respondent.”

— During the interview process, investigators need to exercise due diligence in their note-taking. As well, written statements should be requested by all parties to determine consistency and truthfulness. More than one interview needs to be conducted, particularly with the complainant and the respondent due to the fact that generally their version of events or allegations will differ.

“At the end, either the allegations are going to be substantiated, partially substantiated, not substantiated or inconclusive,” Koster says. “Unfortunately, a number of cases I’ve dealt with have been malicious intent complaints, where untrue allegations are made to harm someone’s reputation.”

She recommends that anyone making such a complaint be sanctioned, up to and including dismissal.

“Being falsely accused of workplace harassment can be devastating and have long lasting negative personal and professional effects because once you have that stain on your clothes, you’ll never wash it out.”

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