Mastering Workplace Investigations: Strategies and Pitfalls

  • May 17, 2018
  • Jon Pinkus M.A., J.D. Associate, Samfiru Tumarkin LLP

Strategies

  • Meet with the complainant first to establish particulars of the allegations

  • Ask complainant for as many documents as possible relating to the allegations

  • Send detailed particulars of the allegations to the respondent in advance

  • Conduct interviews in a private location (on-site or off-site)

  • Emphasize confidentiality obligations above all else

  • Set expectations for complainant, respondent and witnesses with respect to what information will be shared with them, and what their level of participation will be

  • If new complaints come to light, consider expanding the scope of the investigation

  • Consider whether a written investigation report is required or whether something more informal is appropriate

  • Take note of non-verbal behaviour during interviews

  • Allow interviewees to add additional information of their own at the end of each interview

  • Follow up with the complainant, the respondent and witnesses to obtain documentary evidence

  • If necessary, conduct follow up interviews with respect to documentary evidence

  • Complete investigation promptly

Common Pitfalls

  • Waiting until a complainant comes forward when witnesses have already brought forth concerns

  • Waiting for a formal written complaint to be submitted when a verbal or emailed complaint has already been made

  • Using the initial or subsequent meeting with the complainant to criticize the complainant’s performance or social interactions

  • Ambushing the respondent without advance particulars

  • Failing to sufficiently particularize allegations to the respondent

  • Refusing to disclose allegations to the respondent on the grounds of confidentiality

  • Failing to interview a material witness

  • Attempting to interview every conceivable witness when the necessary evidence has already been collected

  • Confusing investigations with mediation

  • Conducting verbal/informal investigations when a more formal investigation is called for

  • Overreliance on documentary evidence or witness statements and under-reliance on interviews

  • Inadequate communications with complainant and/or respondent following the conclusion of the investigation

  • Failing to preserve notes, important documents, and witness statements

  • Unnecessary and/or improper claims of solicitor-client privilege over investigation reports