What to do with your workplace investigation report – employment and hr

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You have made the decision to conduct an investigation and selected the appropriate investigator (see “Selecting a Workplace Investigator,” HRmatters, Spring 2021 issue). The investigation is over. Now what? How do you use the report, how much do you disclose and to whom, and how and for how long do you keep it?

Using the report

At first, you’ll want to make sure that the investigation and report was done in a reasonable fashion. This does not mean that you should interfere with the process or the conclusions of the investigator. Rather, you want to assess whether the basic process was sound. An investigative report should set out the investigative process, the evidence gathered, the conclusions and the reason for the conclusions, including the standard of proof applied. Depending on the scope of the investigation, relevant workplace policies should be identified and considered. If there are obvious issues with the report, such as the lack of an interview with important witnesses, obvious bias, or reaching conclusions without a substantive basis, you will want to carefully consider the weight to be given to the report and it is possible to have it rectified or redone.

Once you are satisfied that the report is appropriate, you will need to decide what to do with the conclusions. If the complaint was found to be “unfounded”, the complainant should not suffer negative consequences unless it is specifically established that the complaint was malicious. It’s very rare. You will also want to consider if there are any other corrective actions that should be taken. Sometimes a policy violation is not established, but the investigation sheds light on other issues in the workplace. For example, an investigation of a harassment complaint by a manager may reveal behavior that is not harassment, but indicates poor management style. If the complaint is valid, you will need to consider what corrective and / or disciplinary action is merited.

If the report indicates unwanted behavior on the part of someone who was not treated as a respondent, you should examine that behavior separately, this time giving the person involved the appropriate caveats and an opportunity to respond. .

Disclosure

At a minimum, the complainant and the respondent must be informed of the end of the investigation and the results of the investigation (i.e. whether the complaint was founded or not). Beyond this, workplace policies or collective agreements can provide guidelines for the disclosure and information to which parties are entitled. Often, parties receive an “executive summary” containing the findings, but not other parts of the report such as witness statements or recommendations. Providing “too much” information, especially in the form of witness statements, can often create new conflicts and should be avoided.

If the report was protected by solicitor-client privilege or prepared for litigation, legal counsel should be consulted before disclosing any part of the report. The privilege can be lost, sometimes accidentally, and care must be taken.

For federally regulated employers, the new Regulation respecting the prevention of harassment and violence at work require that an investigator’s report be provided to the principal party, the respondent, the work place committee or health and safety representative and, in certain circumstances, to the designated recipient. It should include a general description of the event, the investigator’s conclusions and recommendations for eliminating or minimizing the risk of a similar event. It should not reveal, directly or indirectly, the identity of those involved in an event or the resolution process.

Whenever possible, someone not involved in the investigation should be the one who communicates the findings to the complainant and the respondent. This should be done with sensitivity, as it is likely to be a difficult and emotional experience for the person involved. The complainant and the respondent should be provided with information about all employee assistance programs offered by the employer. It is best to meet separately in a neutral, professional and private space. It is often helpful to ask the parties if they have any questions. If you have the answer right away or want to take some time to think about the answer, indicate that you will answer it later, and then be sure to answer.

Both the complainant and the respondent should be warned against retaliation.

Retention

After the investigation, you will want to think about what to do with the report itself.

When a complaint is substantiated, you will want to keep the report in a confidential file until the deadline for filing a wrongful / constructive dismissal complaint has expired. In Manitoba, it is currently six years. It can be kept in the respondent’s file in the same way as other disciplinary documents, and referenced in the complainant’s file in the event that the latter claims a constructive dismissal in the future.

If the complaint is unfounded, neither the complaint nor the report should be referenced in the respondent’s personnel file. It would be wise to keep the report in a separate file for six years in the event that the complainant subsequently invokes constructive dismissal.

In a unionized environment, the report must be kept in the manner and for the duration provided for in the collective agreement. Unless this is contrary to the collective agreement, the report should be kept for at least three years, as current Manitoba occupational safety and health legislation requires employers to review / revise their policies every three years, which can be useful in this process. It will also capture the timelines for filing occupational safety and health lawsuits (2 years) and human rights complaints (1 year).

When processing survey material, it should be remembered that some of this information may be stored electronically and should be treated in the same way as hard copies. In addition, care must be taken to maintain confidentiality in the destruction of such material.

Workplace survey reports can be a very useful tool, but when handled improperly, they can introduce new problems. Care should be taken in determining the use, disclosure, retention and destruction of such records.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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