Whether a seasoned investigator, or someone doing their first interview of employees surrounding a complaint, there will be some anxiousness. A way for an investigator to minimize any nerves is to be prepared and have a plan. This plan will include drafting a standard “opening” to the investigative interview to ensure consistency and that all important points are covered. The opening provides an opportunity to review the process and cover “housekeeping details.” It is not a recap of the complaint, nor is it a summary of the situation. The less said by the investigator about the details of the incident under investigation, the better.
The opening provides key information about the interview process, roles of the parties and organizational requirements. A standard opening should be delivered with sincerity and interest, ensuring a professional start to the investigation and hopefully alleviating concerns the interviewee may have.
A standard “opening” to an investigation will cover the following items:
- Rapport Building
- Reviewing the Purpose of the Interviews
- Ground Rules
1) Introductions of parties
Once everyone is settled in the room the investigator should take the lead and introduce themself, then take the time to introduce anyone else who is present. This may include note takers or members of the HR team.
The investigator will then ask for the names and roles of anyone who has accompanied the interviewee including any legal representatives, support people or union representatives.
2) Rapport building
As the interviewee may be nervous, the investigator should take some time to put the person at ease. This should not be a long-drawn-out process, which may have the opposite effect of making the person more anxious, but a nice segue to the business at hand.
In an effort to make interviewees more comfortable an investigator may be tempted to give them assurances like “you will just get through this, and everything will be fine,” “Don’t be nervous this is just a formality,” “You are going to be just fine don’t worry”. The investigator wants the person to be at ease, but the investigator cannot provide these types of assurances. This kind of assurance could send a contradictory message that the interviewee is relying upon. In the event that the person is disciplined or terminated, they may come back at the investigator who gave them false assurances.
The investigator can be empathetic and make statements such as “I understand that this is a stressful process and appreciate your candor.” This is simply acknowledging their stress and showing appreciation for their honesty about their state of mind.
Depending on the type of notification process in the organization and the type of interview, the interviewee may or may not know the reason for the interview. The complainant and respondent should have been provided much more information than a witness. Witnesses may know very little as to the circumstances surrounding the investigation.
As discussed in the last chapter, there may also be the extraordinary times in which a respondent has not been provided notification and explanation of the meeting if prior knowledge of the investigation would seriously jeopardize the results.
The investigator should explain the process and how the interview is going to proceed, ensuring that it follows the organization’s policies and procedures. It is important to have a consistent opening to all the interviews where you explain who you are, why the person is being interviewed and what the process is. This will ensure that no detail is missed in any of the interviews and consistency is maintained.
As mentioned previously, the investigator will not review the complaint, provide details of the incident or a summary of the case during the opening. This is especially important for witnesses; the investigator will not want to provide witnesses with any more information than is required for the interview.
Witnesses should also be advised at the onset that they will not be privy to any outcome of the investigation. They will simply be advised when the investigation is complete, they will not be provided any further details of the outcome i.e., any discipline that is meted out.
It is also important to explain the role of the investigator. It should be highlighted that the investigator will be acting as a neutral party to determine the facts of the situation and provide a report to management as to what happened. If the investigator is an HR employee of the organization, it is still possible to be neutral as they have no vested interest in the outcome.
4) Establishing ground rules
The investigator may want to provide timelines as to how long the investigation will go. This helps the interviewee understand how long it may be before the investigation will conclude. This is particularly important for the complainant and respondent who may be working under interim measures or are otherwise impacted by the investigation process.
It should be made clear to the individuals that there are no “off the record” comments in a workplace investigation. Everything they share will be captured in either the investigative notes or on a recording. It is prudent to advise the interviewee that anything they share may be used in the organization’s investigation. Sometimes the interviewee will ask the investigator if the contents of their interview will be shared with others. The answer to this question is “yes”.
Sometimes interviewees will want to tell the investigator something, but not have their name attached to it, or they do not want the complainant or respondent to know that they said it. An investigator must caution the person that they can offer no such protection, there are no anonymous comments in an investigation.
To reduce angst an investigator can identify witnesses as numbers i.e. Witness #1 in the investigative report to reduce identification of statements. This means that the investigator retains the names and identification of the witness numbers. Complainants and respondents are not normally privy to the report, but should the matter go to court or arbitration they will have access to the report and the witness statements. Despite witnesses being numbered, depending on the statement a complainant or respondent may be able to identify the witness based on the circumstances.
It is also prudent to explain the role of support people, legal representatives and union representatives in the interview. These individuals are there to support the interviewee but not to coach or answer questions for the individual.
The investigator should advise the interviewee that they are expected to answer the questions as fully as possible describing what they observed or heard. The goal of the interview is to have interviewees detail what they have personally experienced (seen, heard etc.) not what others said happened. The comments should all be from first perspective describing what they themselves have experienced.
Depending upon the organization’s policies and procedures, some investigators will create an audio recording of the interview. It is best practice to seek the person’s consent even though it is not required. Having consent makes it easier to use the recording as evidence later if required. There are benefits and drawbacks to recording interviews; it provides an undisputed record of what was said, but it may also inhibit interviewees’ willingness to talk.
Occasionally interviewees will not be willing to participate in the investigation and state that up front. These types of challenges will be discussed in later chapters; however, the investigator should still complete their opening statements to ensure that the interviewee hears all of the information.
If the interviewee has received a notification letter or an information package, they will be familiar with the confidentiality requirements surrounding the investigative process. That said, the interviewee may not have read the information or may have disregarded it. It is important to review the information regarding confidentiality again in the interview.
Some employers may also want the individual to sign a confidentiality statement in advance of the interview. This should be explained to the interviewee, and they should be given time to read the statement prior to signing.
If a unionized organization requires a confidentiality statement to be signed by a union member, ensure that the union is aware of the confidentiality statement and has agreed, otherwise it will be difficult to have the employee sign. If the union objects, it may derail the interview. Nothing about the interview process should be a surprise for the union.
Occasionally an interviewee will question why they must maintain confidentiality about the process, when the investigator will share the results of the investigation with management. The investigator’s role is to collect, synthesize and communicate the evidence and findings to the employer. Information received by the investigator is not held to the same standard of confidentiality as the interviewee, since it is accepted that what is shared with the investigator will be passed on to management. However, the content of the interviews must be limited to those who have a need to know in order to deal with the issue. The information collected by the investigator must not be broadly shared in the organization. In addition, unless required to do so by organizational policy and/or law, the investigator will not provide their investigative notes of the interview to others, only the final report.
As either a member of HR or a representative of the employer, the investigator should emphasize that a person who participates in the investigative process cannot retaliate against others or be subjected to retaliation because they:
•make a complaint or identify misconduct
•are named in a complaint or identified in misconduct
•give evidence or help in a complaint, or might give evidence or help
The investigator should provide a contact name in human resources (or themselves) that the interviewee can contact in the event that they experience retaliation.
Retaliation may be overt, for example a manager punishes someone who they think might file a complaint against the employer, or an employee threatens someone who is a witness to misconduct. It can also be far less obvious and may comprise things such as excluding certain employees, gossip or general bad treatment.
How does someone know when they are experiencing retaliation? The British Columbia Human Rights Tribunal has created a three-fold test to determine if retaliation is occurring. Retaliation must contain all three of the following factors:
- Bad Treatment- The person must be subjected to bad treatment from others; bad treatment is conduct like:
- discharge (firing)
- imposing a penalty
- denying a right or benefit
Retaliation may take many forms the above list is not exhaustive.
2. Respondent knowledge–At the time of the bad treatment, the perpetrator of the retaliation must know that the victim:
- made a complaint or might make a complaint
- was named in a complaint or might be named in a complaint
- gave evidence or helped in a complaint, or might give evidence or help
- took part or might take part in an inquiry under the Code.
The respondent was at the hearing where the complainant testified.
The complainant told the respondent: “I am going to file a complaint.” Or, “You discriminated against me.”
A victim of retaliation must prove that the perpetrator knows of the victim’s participation in the investigative process. If the perpetrator did not know that the victim has participated in the investigative process, then the behaviour is likely not retaliation due to the investigation.
3. Bad treatment because of the complaint or inquiry- Not all bad treatment is retaliation. A complainant must show the bad treatment is retaliation. A complainant can prove this in two ways.
- First, they can prove that the respondent intended to retaliate.
- Second, they can prove that a reasonable complainant would see the bad treatment as retaliation, if they knew all the facts.
An employee files a complaint. They broke a workplace rule. The employer disciplines them. This is not enough to show the discipline is retaliation.
The employee shows the employer wouldn’t usually discipline someone for breaking the rule. This could show retaliation.
In essence what this does is differentiates retaliation due to a workplace investigation from other bad behaviour in the workplace. There must be a direct connection to the workplace investigation and the bad behaviour.
- British Columbia Human Rights Tribunal n.d., Chapter 10 ↵