Archives for March 2023

Fairness in Workplace Investigations: How Much Should Respondents Know?

Workplace investigations are increasingly complex. New workplace investigators often struggle with how much information to share with the Respondent during the investigative process.

Questions often arise such as:

  • How much information is a workplace investigator required to share?
  • How much information should be shared before the Respondent’s interview?
  • What impact will disclosure or non-disclosure have on the outcome of the investigation?

What is the Standard of Fairness?

As a workplace investigator, you are a neutral third party and it is expected that you carry out your investigative process in a fair and objective way. In other words, in your role, you cannot “favour”, or even be perceived as “favouring”, one party over another. Ensuring that you are equitable towards both the complainant and the Respondent in a workplace investigation helps facilitate procedural fairness and is an essential component of your role.

Further, workplace investigators must remember that when the investigation is complete, their report and the entire investigation process may be subject to scrutiny. This scrutiny includes how “fair” the process was for the parties involved. A key element of this “fairness” includes how much and when information is shared with the Respondent.

Disclosure to the Respondent

Prior to an investigative interview with a Respondent, the Respondent should be made aware of the following:

  • What are the allegations made against them;
  • Who is making the allegations against them;
  • Where the alleged incident(s) took place;
  • When the alleged incident(s) took place.

Further, a respondent should also be advised:

  • that they will have the opportunity to respond to the allegations made against them;
  • that they will have an opportunity to provide their version of events; and
  • that they will be permitted to provide the investigator with the names of relevant witnesses that they would like the investigator to interview.

In addition, when the respondent is provided with the above-noted information, they should be given a reasonable amount of time to prepare for the investigative interview. The amount of time required will depend on the number of allegations made.

Conclusion

The role of a neutral workplace investigator is to find and document the facts. When guilt or innocence is pre-judged, the workplace investigator does a disservice to the investigation and all those involved. Workplace Investigators must remain open to all possibilities, ask appropriate questions, and document the evidence. Providing the respondent with the information noted above is a crucial step in creating a procedurally fair process.

In preparing this article, the author interviewed Jamie Eddy, K.C., a senior labour and employment lawyer with Cox & Palmer in Fredericton, New Brunswick. Mr. Eddy noted that  providing respondents with the allegations made against them prior to their investigative interview is “critical” to the entire investigation process. This step provides a respondent “a key element of procedural fairness”. Mr. Eddy warned that should workplace investigators or employers not provide respondents with the allegations made against them before their investigative interview, they leave themselves open to allegations of procedural unfairness.

For additional support, I have provided a ‘Sample Respondent Letter’ (download a PDF below) for your use. Should you be required to need a letter like this in the future, you can adjust this letter to fit your specific requirements.

About the Author

Devan CorriganDevan Corrigan is an expert in workplace investigations and labour relations, having spent 20 years in human resources management and labour relations before founding an HR consulting company in 2017. He specializes in conducting workplace investigations including investigating complaints of harassment, sexual harassment, violence in the workplace, and other forms of employee misconduct. He holds a Master of Industrial Relations from Queen’s University as well as an Honours Degree in Psychology and a certificate in Human Resources Management from Saint Mary’s University. Devan’s expertise in human resources and labour relations, combined with his background in psychology, make him a go-to third-party workplace investigator. He is a member of the Association of Workplace Investigators and is on the roster for investigators for the Workplace Investigator Network (WIN).

Devan is the lead facilitator for the Queen’s IRC Mastering Fact-Finding and Investigation program.

HR Metrics and Analytics: So Many Numbers, So Little Time…

To show the importance of what this article covers to an HR professional’s effectiveness – and sanity! –  we want to start with a brief “cautionary” tale. We were asked to help the executive leadership team of the IT department of a Canadian bank determine the data they needed to improve hiring decisions for specific senior IT positions. They had asked an HR analyst with the bank to provide them with data to make better and often urgent decisions. Competition for these mission-critical positions is very acute between financial institutions. A bank needs to move quickly when a need or opportunity arises. And that was the extent of the instruction they gave to the analyst: “Bring us the data!” The analyst worked for two weeks gathering data and then made a presentation that included over thirty slides of dense charts and complex graphics; the analyst had basically downloaded every piece of information on senior IT positions across the bank. Unfortunately, it was of little or no help to the executives who were formulating strategy, managing risks, and making hiring decisions. As the executive who brought us in to help said: “After the 3rd slide my eyes started to glaze over. I had no idea what I was being told or what insights I was supposed to take away from it all. There was no structure and no viable conclusion.”

The evolution of data capture technologies now means that organizations have oceans of data to work with. The problem with this – and it is a “problem”, not merely a “challenge” – is that we need to boil this ocean of data into a drink of water that will help us and our leaders make key HR decisions across a range of issues: hiring, resourcing, training, compensation, performance management, health and safety, inclusion, diversity, employee engagement, and more. HR data analysis is a critical management tool, but only if used in a way that supports, not hinders, informed decision making.

In this article we will share two structured ways to look at organizing your thinking and your data analysis that will make more effective use of your time and lead to more timely and informed decisions. First, we will overview the HR Metrics Cycle which leads in clear steps from defining the opportunity or problem, to decisions and a relevant action plan. Secondly, we will dig more deeply into the Define step of the cycle. Starting any project with clearly defined goals and agreed terminologies and metrics is critical to a project’s relevance and success.

For those of you want to learn more about these models and their applications, we encourage you to join us for Queen’s IRC’s HR Metrics and Analytics program where we cover them in more depth, and where you can actively apply them to both case study material and one of your own “real world” live projects.

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