The task of finding, retaining and supervising a workplace investigator often falls to General Counsel or the most senior human resources officer in the organization. How do you know who to retain and what are the best ways to manage this professional relationship? What is the best way to oversee this process? From our perspective as employment lawyers and workplace investigators, a number of things can help you deal with what is often a challenging process. Here are our suggestions.
Retaining a workplace investigator:5 things you need to know
1. Check references
It is essential that you obtain and check references before retaining an investigator. Feel free to ask to review a report that has been “sanitized” of all confidential and client identifying information. Ideally meet with the person you are considering before passing on the work, or at the very least, have a lengthy phone conversation. This is an unregulated area. Anyone can call themselves a workplace investigator, so the buyer must really beware. Ask the investigator how many investigations he or she has done in the last two years. Ask them about the workplaces they are familiar with. Ask them the subject matter of the investigations. A quick Google search will reveal that the marketplace is full of people calling themselves workplace investigators. Look for someone who has depth of experience and excellent judgment.
2. Be precise about your mandate
A good investigator will ask you at the time of the retainer what the mandate is. The investigator can consider whether the complainant’s allegations are, as a matter of fact, true, and stop there. The investigator can also consider whether any findings violate your policy or legislation, such as the Human Rights Code.
Many investigators will be tempted to make recommendations. If you do not wish them to do so, make that absolutely clear at the start. As they have spent many hours interviewing witnesses, and considering your policy, the investigator may have a strong opinion as to what should happen, and how to fix the problem. Their view may be different than your own or your client’s. Once made, these recommendations become part of the record. If you don’t implement them, and the matter investigated becomes litigious, these unfulfilled recommendations can and will be used against your client.
Give some thought as to whether you wish the investigation process, report, and surrounding communication to be privileged at the very beginning of the process. It is much easier to attempt to set this up at the beginning of the retainer than mid-way through. We say “attempt” because the law with respect to privilege of workplace investigation material is not settled.
There is a possibility that no matter how thoughtful you are in terms of the set-up at the beginning, no privilege exists if the matter becomes litigious. With this in mind, you should ensure that all communication between you and your colleagues and the investigator, including the report, will not embarrass you, and will show that the process was unbiased, fair and thorough, because it may ultimately be disclosed and received with a critical eye.
4. Think about timeline and budget
Most investigations have surprises that affect the time by which they can be finished, as well as the cost of finishing them. For example, a key witness may suddenly take ill and delay the process for a few weeks, or a complicated factual matter is raised by the respondent that takes some time to sort out. It is advisable to get some sense from the investigator at the outset how long they think the project will take. Be prepared to be flexible and reasonable.
Ask the investigator to let you know about these surprises when they first come up and how much they will cost in terms of budget and time.
You should receive clear and timely communication about the process as it unfolds. In our view, asking the investigator how many witnesses there are to be interviewed, when the respondent is available, how long it will take to finalize a report, and how much time he or she has spent on this to date, are all appropriate questions and do not impact on the investigator’s impartiality and neutrality.
This is contrasted to questions about how the complainant’s evidence seemed, or if the respondent was credible, or if a witness corroborated an allegation, which should be avoided mid-process.
A version of this article appeared in Canadian Lawyer InHouse magazine.