You’ve received a harassment complaint by one of your employees and you think, who is going to investigate this? You might feel ill-equipped to deal with the process, perhaps you indirectly report to the respondent, you may have a desk full of urgent work and you cannot clear your schedule to complete the investigation or you immediately recognize the allegations are very serious and may lead to potential litigation. There are many reasons employers may consider retaining an external, third-party investigator to conduct workplace complaints. While they are certainly not required in every circumstance, there are some situations where the decision to look externally makes good sense.
- Lack of neutrality
An investigator should be impartial to the parties and allegations involved in the investigation. If the investigator is friends with one of the parties, or has a reporting relationship (even an indirect one), the ability to remain impartial may be compromised but most importantly, it may be seen to be compromised. If the investigator is a witness to the allegations, they are not appropriate to conduct the investigation. The risk in proceeding with an investigator with some real connection to the parties or the allegations is that the party who disputes the findings at the end of the process will allege that it was a biased process. If the employer does not have anyone equipped to conduct a thorough investigation who is impartial, looking for a third-party investigator is required. - Absence of a qualified internal investigator
A workplace investigator should be skilled in the process; they should understand the requirements for providing a fair process, understand credibility and how to assess and weigh various forms of evidence, and know how to draft a thorough report that makes clear findings, relying on all of the relevant evidence collected. If your organization does not have anyone well suited in this area, or the allegations or parties are too complex for the skill level internally, you should consider looking externally for someone with the right skill set to address the issues. - You’re too busy
Investigations should be conducted as soon as possible after the complaint comes to your attention. Your organization may also have a policy that outlines a specific timeline that must be followed in commencing and finalizing the investigation. Putting off the process because you do not have the current capacity raises issues of procedural fairness and can lead to the workplace situation festering and becoming worse. - A lack of trust
Perhaps your organization is facing challenges of a lack of trust in leadership and/or employees are not feeling safe or comfortable in either reporting allegations of wrongdoing or engaging in the investigation process. Bringing in a neutral, skilled, third-party investigator may go a long way to reassure employees that you take their concerns seriously and encourage them to cooperate in the process, creating or increasing a level of trust. - It’s just too complex or serious
Maybe your HR staff can comfortably handle an investigation into complaints of general workplace harassment, but what if you receive a complaint alleging widespread, imbedded racial bias throughout the workplace or repeated sexual assaults in the workplace? When the complaints are serious, complex or nuanced, you may be better served by a qualified external investigator. - Litigation seems likely
If the matter to be investigated runs a risk of being litigated or arbitrated, having a well reasoned and detailed report from a procedurally fair investigation process from a neutral and skilled third-party investigator can make a world of difference. Judges, Human Rights Adjudicators and Arbitrators may be more inclined to accept these findings and if favourable to the employer, summarily dismiss the claim, grievance or complaint. For example, in Zambito v. LIUNA Local 183 et al[1], the adjudicator commented on the investigation conducted by a third-party investigator, “First, I found Mr. Evans to be a totally credible witness. He was a third party who had no interest in the outcome of the investigation. His testimony about the investigation process that he followed, including interviewing witnesses, making findings of fact, and making recommendations based on those findings, was straightforward, logical, internally consistent, and detailed. His testimony about the investigation process was not shaken in cross-examination. Second, I do not accept the applicant’s argument that Mr. Evans’ investigation was biased because in some respects he found Mr. Oliveira and other witnesses to be more credible than the applicant. As a third party investigator, Mr. Evans’ role was to interview the parties and witnesses, and to make findings of fact. The mere fact that the applicant disagreed with his findings is insufficient to establish that Mr. Evans did not reasonably investigate his complaint.”
On the other hand, if an employer desires not to disclose details of the investigation and the report, asserting privilege may help meet this goal. While maintaining privilege over investigative details and the report is a challenge, having an external lawyer-investigator increases the chances of the report being considered privileged in subsequent litigation.
Do I always need an external investigator?
External investigators are not always required. There are many instances where internal, well-trained and unbiased staff fit the bill to conduct investigations. However, employers should always be mindful that there are situations where the employer would benefit from hiring external investigators.
Does your organization need assistance conducting a workplace investigation or training for your team?
The labour and employment group offers bias-free workplace mediation, investigations and training services. Please feel free to reach out to the team for more information or read The importance of properly conducting workplace investigations to learn more.
[1] 2015 HRTO 605