5 Chapter 5: Planning an Investigation

When one begins to plan an investigation, they may be preparing for a full scale investigation in which a formal report will be provided to the decision makers, or it may be a brief investigation to determine if a violation of policy, procedures, standards or legislation has occurred. Whichever approach one takes they want to be thorough in their preparation and have a well-grounded investigation that can support any action taken (or not taken) by the employer.

Objectives of the investigation.

There are several objectives when conducting a workplace investigation:

• Determine what happened in respect to an incident.
• Determine who was involved in the incident.
• Determine the events surrounding the incident.
• Determine if there is evidence to support a claim of workplace misconduct.
• Determine if there was a violation of company policy and procedures, a breach of compliance or a violation of the law.
• Complete a thorough investigation that can withstand scrutiny.

THE PEACE Model

When beginning any investigation, regardless of whether the investigation is going to be lengthy and complex or short and simple, it is helpful to have a template or a model to follow.

Police in conjunction with psychologists in England and Wales developed a model for collecting information that was non-confrontational and not aggressive. They developed a model called the PEACE investigative interviewing model. This model has been adapted to be used for workplace investigations as a way to plan an investigation while keeping it non-confrontational.

“PEACE is an acronym that stands for:

Planning and preparation: This requires investigators to find out as much as they can about the incident under investigation, including who needs to be interviewed and why.

Engage and Explain: The purpose of this stage is to establish rapport and is described in the literature as the most influential aspect in whether or not an interview is successful. It involves showing concern for the subject’s welfare by asking how they want to be addressed, how much time they’ve got available to be interviewed and giving reassurance if the person seems anxious or nervous.

Account — Clarification and challenge: This stage is where the interviewer attempts to obtain a full account of events from the subject without interrupting. Once the interviewee has explained what happened, the interviewer can ask follow up questions which allow them to expand and clarify their account of events. If necessary, this may involve challenging aspects of the interviewee’s story if contradictory information is available.

Closure: This stage involves summarizing the subject’s account of what happened and is designed to ensure there is mutual understanding between interviewer and interviewee about what has taken place. It also involves verifying that everything that needs to be discussed has been covered.

Evaluation: This stage requires the interviewer to examine whether they achieved what they wanted from the interview; to review the status of the investigation in the light of any new information that was received; and to reflect upon how well the interview went and what, if anything, could have been done differently.”^[1]

The premise is based upon good planning of the investigation, no matter how big or small, complex or simple the investigation is.

Prior to commencing, the investigator should have a basic plan as to how they are going to execute the investigation. It should follow any required procedures or processes outlined by a company policy or in a collective agreement. It should include the following items that are adapted from the PEACE model:

1. Determine the goal of the investigation.
2. Determine the scope of the investigation. Is it a single issue or multiple issues?
3. Identify a timeline of tasks if it is required.
4.  Identify resources needed: witnesses, records to be examined
5. Identify if any interim arrangements are required during the investigation e.g. placing an employee on paid leave.
6. Identify if a communication plan is required. Be mindful of confidentiality and reprisals in the workplace.
7. Identify any logistical or procedural obstacles that will need to be overcome.
8. Identify if a report is required, and if so, who it will be provided to.^[2]

Pre-investigation Preparation

As the HR practitioner prepares for an investigation, they will want to collect background information related to the matter being investigated. It is helpful to document the background information already collected either through fact finding or from HR files and capture it along with other information into one place. The following is some of the background information that an investigator may want to collect prior to the start of the investigation.

• What questions need to be answered in this investigation?
• Identify what information is already known.
• Identify what additional information is needed.
• Identify what evidence is already gathered.
• Identify what evidence/records are required.
• Identify witnesses- who they are, where they are, if they require representation at an interview. Determine how they will be notified of an interview.
• Identify logistical challenge. Where will witnesses be interviewed? Is there a communication plan needed? Is travel required? Do employees work different shifts?
• Identify any risks or safety concerns.

An investigator should be sure to read the complaint thoroughly and make note of their questions. This will assist in approaching the investigation with a curious mind. It is helpful to collect this information in either an electronic file or bound notebook where the investigator can refer to it easily throughout the investigation. An investigator may wish to make hand-written notes on a printed copy of the complaint.

Crafting interview questions is a crucial part of the investigation preparation and will be explored in detail later in this chapter.

From a logistical perspective, if a witness interview is going to be recorded, the investigator should ensure that they have all the proper equipment, and the equipment has been tested. At the beginning of the interview the investigator should state in the recording who is in the room. During the investigation it should be noted if anyone joins or leaves the room, and the investigator may want to explain on the recording any long periods of silence.

If the investigator is taking handwritten notes they should ensure ample paper, pens, etc. are available. They should also determine up front if the interviewee or union is entitled to see their notes or have a copy of the interview transcript.

Interviews should be conducted in a discreet location, out of the view of the general employee population. The space should be quiet and comfortable and accessible for those who may have mobility challenges or other disability. It is advisable to have water and a box of tissues available for interviewees.

An investigator must be flexible, as the interview may not go exactly according to plan. Regardless of what occurs during the meeting the investigator is responsible for running the interview. They should not be distracted or intimidated by others during the investigation – including supervisors or managers, union, or employees. Good planning will enable an investigator to adapt to the circumstances that arise and still meet their objectives.

Crafting Interview questions

An investigation entails gathering evidence in a systematic, impartial, and professional manner. Part of that evidence may be oral evidence from witnesses and individuals involved in the incident being investigated. The success of gathering oral evidence is dependent upon the quality of the interview to uncover the truth. Crafting good interview questions is essential to eliciting the best information from individuals.

An investigator wants to ensure that they get a good grasp of the facts through the interview. This involves questions on the 5 W’s

• Who was involved?
• What happened or what was said?
• When did the incident occur?
• Where did the incident occur?
• How did the incident occur?
• Do you know why the incident occurred?

“Why” is probably the least important for the investigation, as the investigator can determine if there was misconduct or the validity of a complaint without ever knowing the reason why. As humans, we want to make sense of the world that we live in and want to know the reasons why events take place so it is natural to want to know why an incident happened. However, an investigator may need to be satisfied to conclude the investigation never knowing the why.

The investigation may start with asking some “housekeeping” questions. These are questions that the investigator knows the person can answer and should be easy for the person to respond to. This will help the person to feel as comfortable as possible and get them used to answering questions. Housekeeping questions are simple, closed questions.

Some housekeeping questions may be asking the person their name, their job title, how long they have worked with the company, what their job entails on a daily basis, or who their supervisor/manager is.

After the housekeeping questions, the investigator will progress to more investigative and probing questions.

Creating Investigative Questions

Investigative questions get more to the heart of the matter. Now that the person has a level of comfort and is talking, the investigator will want to collect the facts and underlying information that is helpful to the investigation. Investigative questions should have the following characteristics:

1. They need to be open ended
2. They need to add clarity to the issue/complaint
3. They need to be on topic and relevant to the investigation
4. They need to be questions not an interrogation
5. They should check for inconsistencies and illuminate earlier answers
6. Should be neutrally worded (not blaming or accusing)

Questions should be prepared in advance to give the interview structure and free up time for the investigator to write accurate notes. Follow-up and probing questions may be used to gather further information. These follow-ups should be more fluid based upon what the interviewee says. The key is to get the interviewee telling the investigator a free flow narrative of what they saw, heard or experienced. An investigator may prepare questions in advance but never end up using them, and that is perfectly ok. It gives the investigator a sense of security to have questions prepared to ask even if they are not used.

Questions prepared in advance are helpful and can guide the investigation, but do not need to be followed strictly if the interview goes in a different direction, as long as the investigator is getting the information they require. Different questions will be prepared for the different parties that are interviewed and for each incident being investigated. What might be an appropriate question for a respondent to a harassment complaint may not be appropriate for a witness to that same complaint.

Different types of complaints will need different types of questions. In a discrimination or harassment complaint the investigator will need to craft unique questions for the complainant, respondent, and any witnesses. In a complaint of misconduct by a supervisor or manager, the investigator will speak to the supervisor or manager to get all of the information surrounding the misconduct, which is likely more like a conversation. However, the investigator will need to craft more formal questions for the respondent and any witnesses in misconduct complaints. A complaint of workplace fraud would again require a completely different set of questions.

It is important to remember to let the interviewee have time to think about an answer to a question, certain individuals may need more time to formulate their answers, as an investigator do not be afraid of silence. It is also important to conduct an interview not an interrogation. An interrogation is confrontational and accusatory, its goal is to make the interviewee uncomfortable and show the investigator’s power. Workplace investigators need to be mindful that at the end of the investigation they will possibly be working with the participants again, seeing them in the lunchroom or around the organization, thus it is important to maintain professionalism and good relations.

Sample Questions for the Complainant

Included are some sample questions for different types of complaints and different types of interviewees.

1. Harassment based questions

Housekeeping:

• What is your full name?
• What is your position at (Company Name), how long have you been in this position?
• What are the typical duties in your job/ what do you normally do in a day at your job?
• What is your working relationship with (Respondent’s name)?
• How long have you worked together?

Investigative:

• How would you describe your working relationship with (Respondent’s name)?
• You have made a complaint/complaints against (Respondent’s name) for alleged harassment. Tell me about the allegations that you have made. Let’s start with the first one
• Allegation explained
• Second Allegation explained (if more than one allegation the complainant will be asked to explain the circumstances surrounding each allegation)
• Was anyone else present who may have witnessed the incident? If so what was their involvement?
• How did the complainant respond to this alleged incident?

Follow up with probing questions, identify any inconsistencies and ask for clarification, capture the details required to establish the facts. Be curious.  Some investigators will refrain from asking behavioural type questions, but there can be value in asking these questions as it provides insight into the complainant.

• What were you hoping to achieve by bringing forward this complaint?
• Why did you make this complaint now?
• Why do you think the respondent did these actions?
• How do you think the respondent will respond to these allegations?
• What would you like to see happen? What is an appropriate sanction for what is alleged to have occurred?
• What do you think would be a fair outcome?

There are no correct answers to behavioral questions, but an investigator should look for responses that are disproportionate to the allegations or the rest of the evidence that may be revealing.^[3] If a response is disproportionate there might be something else going on. An example of a disproportionate answer may be “I want the person locked up forever, so they never see the light of day and their soul dies.” This might encourage the investigator to speak to the employer about what they have heard and inquire if there is something else going on.

Sample Questions for the Respondent

1. Misconduct based questions:

Housekeeping:

• What is your full name?
• What is your position at (Company Name), how long have you been in this position?
• What are the typical duties in your job/ what do you normally do in a day at your job?
• What training have you received to be able to do your job?
• Who else do you interact with in your job?
• What is your working relationship with (Complainant’s name)?
• How long have you worked together?

Investigative:

• On (DATE) an incident occurred on your job where your Supervisor (Supervisor Name or other Authority Figure) became involved. Can you tell me what happened that day?
• Or
• On (DATE) there was an incident that occurred while you were working, do you recall the incident? Please tell me about what happened?

Follow up with probing questions, identify any inconsistencies and ask for clarification, capture the details required to establish the facts. Be curious.

2.  Harassment based questions:

Housekeeping:

• What is your full name?
• What is your position at (Company Name), how long have you been in this position?
• What are the typical duties in your job/ what do you normally do in a day at your job?
• What is your working relationship with (Respondent’s name)?
• How long have you worked together?

Investigative:

• How would you describe your working relationship with (Complainant’s?
• ‘s name)
• Has your relationship changed at all from when you first met? If so, how?
• In the complaint received by (Complainant’s name) allegations have been made against you for (Harassment/Bullying/Alleged Behaviour) I would like you to walk me through each of the allegations from your perspective.
• Allegation #1
• Allegation #2 (if more than one allegation the Respondent should be asked to explain all the circumstances surrounding each allegation)

Follow up with probing questions, identify any inconsistencies and ask for clarification, capture the details required to establish the facts. Be curious.

Sample questions for the Witnesses

1. Misconduct based question

Housekeeping:

• What is your full name?
• What position do you hold at (Company name)?
• How long have you been in that role?
• What do you do in your current role in the typical day?
• What is your working relationship with (Respondent’s name)?

Investigative:

• How would you describe your working relationship with (Respondent’s name)?
• On (date) there was an incident involving (Respondent’s name) can you tell me about what you saw and heard?

Follow up with probing questions, identify any inconsistencies and ask for clarification, capture the details required to establish the facts. Be curious.

2. Harassment based questions

Housekeeping:

• What is your full name?
• What position do you hold at (Company name)?
• How long have you been in that role?
• What do you do in your current role in the typical day?
• Do you work with (Complainant’s name)?
• Do you work with (Respondent’s name)?
• How long have you worked together?

Investigative:

• How would you describe your working relationship with (Complainant’s name)?
• What is your working relationship with (Respondent’s name)?
• How would you describe your working relationship with (Respondent’s name)?
• How is (Respondent’s name) working relationship with others?
• Have you ever noticed any inappropriate behaviour by (Respondent’s name)?
• On (DATE) there was an incident that occurred did you notice anything unusual on that date?
• Did you notice anything unusual about (Complainant’s name) on (DATE)?
• Did you notice anything unusual about (Respondent’s name) on (DATE)?

Follow up with probing questions, identify any inconsistencies and ask for clarification, capture the details required to establish the facts, be curious.

Prompts or Follow ups

Sometimes an interviewee is not clear or they may be reluctant to expand upon their answers. Prompts or follow up questions can encourage people to continue talking. It also lets the interviewee know that the investigator is listening and interested in what they have to say. Some common prompts are:

• I’d like to hear what your thoughts are on (topic)
• Earlier you said (item), tell me more about that
• That is interesting, can please you expand upon that
• I’d be interested to hear what you have to say on that

Follow ups are questions that follow a question when you need more information. If an interviewee has not been clear or has not provided quite enough detail the following can be used:

• Tell me more
• How so
• Earlier you mentioned (item) now you stated something quite different, why is that
• I am not sure I understand, can you explain that
• What do you mean when you say “…..”
• Really

Even though an investigator may draft their questions in advance, they should be flexible and be prepared to probe or elicit additional information. Interviewees may provide information that the investigator had not thought to ask about but is valuable to the investigation.