workplace investigation process

Where the grievance or complaint and matters under investigation are related, it may be appropriate to deal with both issues concurrently. The ruling is one example of how a poorly conducted internal investigation can cost a company financially and damage its reputation, not to mention the reputations of the HR professionals tasked with overseeing such a probe. While many HR departments investigate every employee complaint, employers are legally mandated to investigate harassment, discrimination, retaliation, safety and certain other types of complaints. The main purpose of a workplace investigation is to determine whether conduct occurred in violation of the law or organization policies and, if so, to provide a foundation for imposing discipline up to and including termination of the accused employee. However, good investigators will first create a plan that answers these questions: “You need to clearly define the purpose of the investigation and the scope of the investigation,” Schaefer says. Employers have a responsibility to conduct a fair and equitable investigation prior to making a decision that impacts on a worker’s employment and to meet the duty to maintain a safe workplace. I explain how I will deal with confidentiality issues. Thus, the credibility of third-party witnesses must also be tested. Is my reward really going to be greater than the risk?’ ” says Natalie Ivey, SPHR, author of How to Conduct Internal Investigations (Results Performance Consulting Inc., 2013) and president of Results Performance Consulting Inc. in Boca Raton, Fla. Ivey recalls a harassment case in which a male employee was accused of coming on to a female worker at the copy machine. One of Schaefer’s fellow attorneys recently testified on behalf of a fired employee who won a $1 million award in an arbitration case. Workplace Investigations – Evidence Gathering. When there is a possible workplace disciplinary or grievance issue, the employer should find out all they reasonably can about the issue. Workforce demographics are shifting. What are the applicable policies? For workplace investigations, interviews are crucial to a fair outcome. In this article, we’ll cover as to how to conduct a workplace investigation when a complaint is received, as no investigations or flawed investigations could lead to costly and time-consuming legal process and would have a detrimental effect on the reputation/brand of the organization. With proper planning, HR professionals can better address “he said, she said” cases that tend to cause them to throw their hands up in frustration. ​While HR professionals have many demands on their time, it’s critical to investigate an allegation quickly, Laframboise says. Depending on the type of investigation, you may need to consider the gender of the investigator (in a sexual harassment investigation, for example). Next, notify the parties so that they understand next steps, and the process that will be followed. “Ask straightforward questions to get straightforward answers, and always be respectful,” he advises. If the company terminates an employee and that person later files a retaliation complaint with the EEOC, the HR investigator will want to have case notes and witness statements to protect himself in court. The four stages of an investigation are: $('.container-footer').first().hide(); Fatality investigation reports. We have provide investigations, appeals and reviews in many of the Government departments, civil service, state and semi-state bodies, universities, ETB’s, and so on. Encourage all those involved in the investigation to keep the proceedings confidential to protect the integrity of the process. “People don’t want to decide that someone’s not telling the truth,” she says. Specifically, he noted that the HR report failed to include evidence favorable to Castelluccio, including his performance reviews. Nor it is necessary to disclose all the evidence considered. However, don’t promise an employee that his or her complaint will remain confidential, because it might be necessary to share the information down the road. By ensuring a fair investigative process, HR professionals also can help build morale and trust among employees. Compliance with statutory obligations? Public Employees Have Greater Process Due. “He claimed he was making copies, but I had evidence that his copier code was never used. A workplace investigation is a process by which employers investigate whether one of their employees have engaged in misconduct. Here are five key steps to conducting a proper workplace investigation. To understand the process of investigation, it is necessary to comprehend the distinction between investigative tasks and investigative thinking. A workplace investigation commences when an internal HR professional or third-party investigator is tasked with looking into a workplace issue and coming to a conclusion of facts. Interviewing persons other than the principal parties is usually key to making credibility determinations between the parties. We also provide tactical training on the investigation process for your internal workplace investigators. Suzanne Lucas, The Evil HR Lady. I may further explain that my job is to determine to the best of my ability what “more likely than not” occurred. Those involved should remain objective and have no personal stake in the outcome of an investigation. A word of caution is in order for the HR team as well. Does the witness seem to be telling the truth? Workplace Documentation is Critical Keeping detailed and contemporaneous written records is the cornerstone of good documentation. Sometimes the evidence leads to doing two or more interviews of the same witness—possibly shuttling back and forth between the claimant and the respondent repeatedly as new details of the allegations and defenses are revealed. We are up-to-date on the latest legislation, codes and changing case law. I always give accused employees reasonable notice of the allegations against them. “In determining which person to interview next, I ask, ‘What’s my risk of feeding the rumor mill, and what’s my reward going to be? Element #2: Notice of the Charges Against the Respondent. Ultimately, HR decides whether disciplinary action is needed. Documents disappear. Source: SHRM How-to Guide: How to Conduct an Investigation. Conducting workplace investigations is one of the most challenging duties that HR professionals must take on. Workplace Investigation Process – A workplace investigation is an independent inquiry into complaints and allegations made about an employee’s conduct or behaviour. The purpose of this procedure is to outline the process by which a Complaint is investigated, evaluated and resolved if the University policy that is alleged to have been breached provides that the Complaint is to be investigated under this procedure or is silent as to an investigation procedure. Our reports are concise and precise. A workplace investigation is a process that researches an unclear situation involving employees. But reasonable notice of the charges is essential to an investigation holding up if litigation ensues. Plausibility. “It’s not that you can’t trust your colleagues. Our workplace investigators are also experienced in working under legal professional privilege as we are regularly engaged by lawyers to conduct investigations for their clients. Need help with a specific HR issue like coronavirus or FLSA? Increasingly, employers are recognizing the importance of conducting a workplace investigation, not only to ensure statutory compliance, but also to discover workplace problems, prevent recurrence, take corrective action and prepare for litigation, mediation or arbitration. Bad behavior continues. Lack of Workplace Documentation Are there documents or other witnesses that support the witness's version of events? Complaints and allegations of inappropriate workplace behaviour must be taken seriously, and demonstrating this seriousness means giving immediate attention to the matter. Is the witness's version of the facts believable? It’s about mitigating risk whenever possible.”. When litigation ensues, the courts will be very interested in determining whether the discharged employee received “due process.”  Under law that is still developing, an investigation that is prompt, fair, thorough, and impartial should shield an investigator and the employer from claims that the investigation was inadequate. An overview of each step of a Workplace Investigation Process is provided below. Answering questions about a traumatic experience is hard, so if the interviewee refuses to answer, simply move along and try to come back to the question at a later time. var currentUrl = window.location.href.toLowerCase(); The Investigations Manager makes a threshold determination whether a formal investigation is needed. Sometimes non-party witnesses should also be re-interviewed. A workplace investigation does not have to abide by the same strict rules of a police investigation, for example. “There’s nothing that documents how they got from the complaint to substantiation to termination,” she says. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. “I don’t know any other business area where things can change so dramatically in a fairly short period of time as far as legislation or best practice or new research,” says Faith Laframboise, North American manager of HR for Spirol, a fastener manufacturer based in Danielson, Conn. “That makes it incredibly challenging to stay on top of everything.”. Does it make sense? The information contained in this Guide is grouped into two sections. We provide external / independent workplace investigations and appeals. Haber Lawyers will guide you through the workplace investigation process. Fortunately for employers, there is some guidance on what to do when a complaint is made. The investigator must not simply assume the complainant is telling the truth. New laws are constantly popping up. In Jameson, the accused employee argued that the investigation was insufficient because the investigator: (a) was not clear about her role; (b) had close ties to the employer; (c) failed to notify the accused that he was the subject of a complaint and the subject of the investigation; (d) interviewed witnesses by phone; and (e) did not interview all the witnesses the accused suggested. Workplace investigations. Since I am an attorney, I explain that I am not their attorney and am not representing or advocating for the employer that hired me to do the investigation. Even the location of interviews can affect the outcome of the investigation. Scope. As time goes by, it will become more difficult to collect evidence and get witnesses to talk. We don’t want to call someone a liar.”. Element #4: Testing What the Complainant Says. Please confirm that you want to proceed with deleting bookmark. For example, e-mail messages might show that a male supervisor has made inappropriate sexual comments to a female employee, which corroborates the female employee’s complaint. Workplace investigations are unfortunately not uncommon occurrences and arise where it is alleged that an employee committed an act of serious misconduct e.g. 1. Then, plan the order in which interviews will be conducted. Those conducting the investigation must be knowledgeable about the type of work involved at the time of the incident. SHRM How-to Guide: How to Conduct an Investigation. Please enable scripts and reload this page. Findings from WorkSafeBC investigation reports are posted online. Reintegrate the employees involved back into the workplace, shifting focus from the complaint to the changes the investigation has brought about. OHS investigates serious work site incidents, including fatalities, which fall under provincial legislation. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Throughout the interview and investigation process, it is essential that you accurately record all the information you gather. Due Process:  Exactly What Process is Due? Conducting a workplace investigation should not be taken lightly—no matter the underlying incident. A reasonable amount of information should be disclosed. This template may be used by an employer or an external investigator hired by an employer to investigate human rights concerns in the workplace. An employer is bound by principles of procedural fairness in imposing discipline, and this generally entails an obligation on the employer to investigate the circumstances before disciplining an employee. However, the standard for workplace investigations is “the preponderance of the evidence.” Is it more likely than not that the incident occurred? Then the investigator should systematically go through all that evidence—much in the way a jury deliberates—to reach a reasoned conclusion as to what more likely than not occurred. This article is intended to serve as a resource for HR professionals to develop your own Investigation processes, procedures, and templates. Ready to improve your company’s employee experience with a constructive workplace investigation process? As part of its mandate to oversee the integrity of the staffing system and the political impartiality of the federal public service, the Public Service Commission (PSC) investigates concerns relating to specific appointment processes and allegations of improper political activities for organizations that are subject to the Public Service Employment Act. The recent case of Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police NSWIRComm 51 is a classic example of how not to conduct a workplace investigation. Past record. Similarly, the investigator must dig for evidence to confirm or refute whatever respondents say in their defense. Before interviewing witnesses, gather physical evidence that might validate the complaint. To that end, have a formal plan for how to address each complaint. Do note share personal information about employees ex: DOB, wages, telephone numbers, health information . Element #5: Testing What the Respondent Says. Even if they’re not happy with the answer, at least they feel they’ve been heard.”. Conducting an investigation into an incident that occurred in your workplace includes four stages. In an Illinois workplace harassment case, an appeals court criticized Chrysler’s internal investigation because, among other things, a principal HR investigator looking into an employee’s complaints of anti-Semitic death threats and property damage was married to someone on the employee’s list of suspects. 1. Attorney Gene R. Thornton, AWI-CH understands the legal and practical definitions of “due process.” For a truly fair and legally-defensible workplace investigation, contact Gene R. Thornton, Esq., AWI-CH at Thornton Workplace Investigations, LLC. IBM settled the case out of court in 2015 for a dollar amount that is confidential, according to Castelluccio's attorney, Mark Carta. The first best practice involves your questioning approach. Evidence should be actively sought to both corroborate and undermine the complainant’s allegation. Stretching an investigation out over a lengthy period tells employees the alleged misconduct isn’t important. Certain employees of public employers such as police and fire departments have a property interest in their jobs and, as a matter of constitutional and statutory law, must be afforded “due process.”  The process due to public employees is more extensive than what is described in this blog. The courses teach the skills necessary to conduct rigorous workplace investigations that will withstand scrutiny. On the other hand, a properly conducted investigation—one that is prompt, thorough and impartial—can help defend a company should a lawsuit be filed later. AGENDA • Introduction • Why Investigate ? But the task is not for the faint of heart. When you … © Copyright 2020, Thornton Workplace Investigations, LLC. b) Preparing the Plan. Supporting documents. When there is a possible workplace disciplinary or grievance issue, the employer should find out all they reasonably can about the issue. The purpose of this procedure is to outline the process by which a Complaint is investigated, evaluated and resolved if the University policy that is alleged to have been breached provides that the Complaint is to be investigated under this procedure or is silent as to an investigation procedure. 2021 Programs Now Available! Topic: Workplace Investigation Process Effective: September 2020 Cross-Reference: Administrative Procedure – ... workplace investigation is the “balance of probabilities” standard, which means the alleged misconduct is more probable than not to have occured. Does the alleged wrongdoer have a past record of inappropriate conduct? Resolution Activities. A jury awarded $4.2 million to the Chrysler employee, but the amount was reduced to $300,000 by an appeals court last year. Employees are more aware of their rights. The process for conducting investigations may vary from employer to employer. But that more relaxed standard still leaves plenty of room for mistakes. 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