Fundamentally Fair - How Investigators can make fairness a priority during Investigations

One of the most important aspects of any investigation is ensuring fairness for all involved. Failing to treat parties fairly can result in an investigation having to be done over or even have serious financial consequences for employers and investigators if the faulty investigation leads to a legal proceeding[1].

Elements of fairness are particularly important in workplace investigations. They include a person’s right to know the case against them, the right to be heard, and the right to have an impartial decision maker. While these elements seem simple enough, investigators sometimes struggle to recognize what they look like in practice.

Below is a brief description of some elements of a fair investigation process.

1. What does fairness look like for complainants?

When we talk about the fairness of an investigation, the focus is often on the respondent since they are the person who is seen to be “in jeopardy.” However, a fair investigation process is essential for complainants as well. This starts with a complainant’s right to be heard through careful consideration of a written complaint, an interview with the investigator, or both. Investigators should also take any necessary steps to support the complainant to allow them to present their case. For example, allowing the complainant to bring a support person or translator if they need one or using a trauma-informed approach to interviewing when required.

2. What does fairness look like for respondents?

The essential element of fairness for respondents is knowing the case against them. In most cases, respondents should be provided with allegations in writing in advance of their interview with the investigator, and the allegations should include sufficient detail to allow them to formulate a response. Telling a respondent, “It is alleged you engaged in workplace harassment,” would not meet the required standard of fairness since they would not have the dates and details necessary to prepare an informed response.

In addition to providing written allegations to the respondent, they should be allowed to address all relevant points raised by the complainant and by witnesses, which may require a second interview with them. Suppose an investigator relies on witness evidence that the respondent has not been informed of or given a chance to address. In that case, that investigator is unfairly treating the respondent.

3. What does fairness look like for witnesses?

Witnesses are not parties to an investigation; accordingly, there are no strict rules around the degree of fairness to which they are entitled. However, steps can be taken to ensure that witnesses feel they have been treated fairly. First, witnesses should be told at the outset why they are being asked to meet with an investigator. This does not mean that witnesses must be given the investigation details (usually, they are not entitled to this information). Still, it should be made clear that they are being asked to participate as witnesses and that there are no allegations against them.

During their interview, witnesses should also be given a realistic overview of the limits of confidentiality as it pertains to their evidence. While many witnesses would prefer that the parties have no idea what the witness said during their interview, this is not always possible. Witnesses should be told that the parties may know what the witness told the investigator since the parties will be allowed to address the evidence upon which the investigator intends to rely. It is only fair that witnesses know what will be done with their evidence and who may have access to it before completing their interview with the investigator.

If you would like to learn more about fairness and other essential elements of investigations, consider attending our upcoming online session on:

How to Investigate: Fundamentals of Effective Fact-Finding ET November 15,  MT January 9, ET April 24

More of our upcoming ONLINE courses below:

Investigations Training Suite MT Sept 2022, ET Nov 2022, MT Jan 2023, ET Apr 2023

Investigative Interviewing ET November 16, MT January 10, ET April 25

Investigating Allegations of Harassment and Sexual Harassment in the Workplace MT September 14,  CT November 17,  CT April 26

The P.E.A.C.E. Interview Framework CT September 15, CT April 27

Report Writing for Investigators MT September 16, ET November 18, MT January 11, ET April 28

Investigating Discrimination in the Workplace CT September 19

An Investigator’s Guide to Preparing for a Hearing, Adjudication or Trial CT September 20

Assessing Credibility CT September 21

5 Day PEACE Interview Framework PT Nov 2, 3, 4, 7, 8

Equity, Diversity and Inclusion Best Practices in Workplace Conflict Resolution & Investigations CT November 9

Comment enquêter : Les principes fondamentaux d’une enquête efficace ET November 14

Two-day Internet course ET November 21-22

Workplace Restoration: Repairing Relationships in the Workplace CT November 23

Workplace Assessments: Identifying and Solving Issues Before They Become Investigations CT November 24

[1] See, for example, Chandra v. National Bank, 2011 ONSC 777