Conducting the Investigation
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.
Does a Workplace Investigator Examine or Cross-Examine 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 Employee’s 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 Employer 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.
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.