SELECTING A WORKPLACE INVESTIGATOR Key considerations to contemplate as soon as a complaint, allegation arises
By
Cynthia Lazar DECIDING TO CONDUCT AN INVESTIGATION
Sometimes a workplace investigation is required by either statute or a collective agreement. In other cases, an investigation is not required by law but is a prudent step to protect the employer’s interests. When an employer is considering dismissing a non-unionized employee for just cause and a wrongful dismissal action is likely, a good investigation can bolster such case and also be used to rebut allegations of bad faith conduct. Similarly, a workplace investigation should be considered when allegations point to a potential contravention of human rights legislation or a violation of respectful workplace or harassment provisions in a collective agreement that may give rise to a grievance. Once decided an investigation should take place, how should an employer
8
HRmatters / www.cphrmb.ca
determine what kind of investigator to retain and the type of investigation that’s most desirable? INTERNAL OR EXTERNAL INVESTIGATOR
The first consideration in selecting a workplace investigator is to determine whether the investigation should be done ‘in-house’ by an internal person or an external investigator should be retained. There are advantages and disadvantages to each approach. An internal investigator will be more familiar with the workplace and policies and less costly than an external investigator. However, an external investigator will almost always be perceived as being more objective. Employees are more likely to feel comfortable speaking with an external party. Whether justified or not, internal investigators may be viewed as
threatening, untrustworthy or motivated to protect the employer’s interests above maintaining the integrity of the investigation. Reports of disinterested external investigators may also be more persuasive to an ultimate decision-maker than those of internal investigators. External investigators can be expensive, though, especially as the scope and complexity of an investigation may not be easy to predict. Issues and witnesses may only become relevant after the investigation begins. This makes creating a realistic budget challenging. Investigations of minor disputes between peerswherefuture litigation is unlikely may be suitable for investigation by internal human resource professionals with proper training in investigations. Where there is a power imbalance between the complainant and respondent, potential litigation or the appearance of bias due to a real or perceived personal
