Conducting the Investigation
Fair Process, Witness Interviews, Evidence & Investigator Independence
A workplace investigation must do more than simply collect competing
accounts. The process should be impartial, proportionate and
evidence-based, with careful attention to procedural fairness,
credibility, documentary evidence and the rights of the parties.
This section examines the practical and legal principles that
shape a reliable workplace investigation.
Basic Rules in Conducting the Investigation
The essential principles governing a workplace investigation,
including independence, neutrality, proper notice of the
allegations, interviewing the relevant witnesses and reaching
findings supported by the evidence.
Summary of Due Process Standards
A practical review of the procedural protections that should
form part of a fair investigation, including disclosure of
the substance of the allegations and a meaningful opportunity
for the responding party to answer them.
The Investigator Must Consider Exculpatory Evidence
An investigator must consider evidence that supports an
allegation as well as evidence that may contradict or weaken
it. This article examines the importance of a balanced
evidentiary assessment and the risks created by confirmation bias.
Examining or Cross-Examining a Witness?
Workplace interviews are fact-finding exercises rather than
courtroom examinations. This article considers how investigators
should question witnesses, test conflicting evidence and probe
credibility without turning the interview into adversarial
cross-examination.
Access to Employees’ Electronic Footprints
Electronic communications and workplace devices can contain
highly relevant evidence. This article examines the competing
considerations of workplace fact-finding, employee privacy
and access to electronic records during an investigation.
Can the Employer’s Lawyer Be the Investigator?
A review of the issues that arise when the employer’s lawyer
conducts the investigation, including independence, privilege,
role confusion and the distinction between legal advice
and neutral fact-finding.
Video: Rules of Fairness in the Investigation
A short video reviewing the core fairness principles that
should guide the investigation process and the manner
in which evidence is gathered and assessed.