So you’ve received a harassment complaint from one employee about another employee. What do you do? Do you have to investigate? Can you use your common sense and just discipline? Is the complaint clearly BS in the first place? What if the complaint is about a break-the-company level fraud by your CFO?
Workplace investigations are usually an unwelcome but necessary business diversion. Many employers would rather avoid them and will attempt, or seek counsel’s validation for, a quick and dirty alternative such as a quick-release termination of the alleged wrongdoer or relocation of the complainant. But these are not alternatives to investigating, are never the upfront solution and often fail to satisfy the legal obligation to properly investigate. These responses are more likely to expose an employer to greater liability.
A complaint of workplace misconduct needs to move quickly, and yet is no time for fast thinking. Employers should instead think carefully about the substance of the complaint, the impact on the involved parties and the business fallout if their response is the wrong one.
One of the thorns for business owners is the potentially high cost of proceeding with an investigation. Rarely is an external investigation under $7K and so it makes sense for employers to do a cost-benefit analysis before choosing a workplace investigation approach. Here are 3 ways to help contain the cost of your investigations.
- Be clear about the scope.
Whether an internal or external investigation, the first step always begins with figuring out the scope of the issue or dispute in question. The scope is the behaviour or thing complained about that requires an investigation.
Trained investigators refer to the scope as the investigation’s mandate. Although a workplace investigation can be ordered by the Ministry of Labour, most investigations are initiated by the employer following a complaint of misconduct.
When initiating an investigation, one of the key responsibilities of the employer is to define the scope of the investigation for the investigator. The subject matter of the misconduct may be clear, but sorting through the issues and evidence in a fact-finding exercise will always be murky and time-consuming. You can keep your costs down by narrowing the investigation and setting clear parameters on the investigation’s scope. An investigation without limits will be an ineffective resolution tool and drive up the time, required resources and costs.
- Hire an experienced investigator at the outset
Some situations require an expert third party investigation. Serious workplace misconduct can risk broader liability for the employer. Adjudicators and courts will not excuse an employer for an inadequate or inappropriate investigation. When an investigation is required, conducting a competent, neutral and fair investigation is an obligation imposed by the law on all employers.
Engaging an experienced workplace investigator, and one with expertise in the complaint’s subject-matter, allows you to satisfy the company’s legal obligations around investigations and workplace misconduct. The experienced investigator will cost more but will bring to the process an understanding of the issues and law at play, can be the fresh set of eyes on a problem and can produce a report you can rely on to inform your subsequent decision-making. An inadequate substitute for a process carried out by an experienced investigator can cost more in the long run or require duplication.
- Do it internally!
Do you always need to hire an expensive external investigation? No, you don’t. While there are situations where an external investigator is better – such as where the person complained about is on your senior management team or where institutional wrongdoing is alleged – there are many other complaints that can and should be handled internally.
Internal investigations can allow for a narrower mandate, produce more timely results and can improve efficiency by gathering relevant documentary evidence and by identifying critical issues that would not become apparent until later in an externally directed process.
An internal process for investigations allows an employer to develop beneficial in-house competence and knowledge of company processes, policies, historical approaches and culture. As long as there is a sufficiently independent team member who has some basic training and tools on procedural fairness and who understands the company’s policies, you can often carry out your own internal investigation plan that syncs up with your organization’s overall culture and mission.
There is a growing investigation world out there and we know a lot of really excellent investigators we often recommend – but not every situation needs to blow up into a massive $20K process. With some basic tools and the right internal person, who can truly balance both sides of the story to come up with a report on the situation, many situations can be addressed and resolved internally.
If you would like to talk to us about whether you can or should conduct an internal investigation in your workplace, get in touch to set up a consultation.
