Rules for Conducting the Investigation

These rules apply to both statutory investigations and voluntary investigations in civil cases.

Preliminary Review

The complaint should be assessed by determining the fundamental allegation, if there is an existing workplace policy dealing with this issue, the process and the persons likely involved as witnesses.

The status quo of the workplace should be reviewed, to determine if there are any interim steps to be taken, such as a leave for the alleged victim or the suspected one, to ensure the safety of the workplace. Placing the respondent on a leave may be a difficult decision as there may a stigma attached to this action and/or the suspected one may assert that this is a constructive dismissal. Where this is effected, consider a statement from the employer that such action is not to be considered a disciplinary action or suggestive of wrongdoing.

If the employer has a policy manual on the investigative process, review it thoroughly and ensure its compliance.

Disclosure of the Issues

The suspected one should know the substance of the allegations, whether they are civil in nature or whether they may lead to criminal prosecution. The identity of the complainant should be given to the respondent. This person should be told that they will have a right to present their version of material evidence and any pertinent documentation and they should provide the investigator with the names of any relevant witnesses

Persons who are likely witnesses to the event need not know the allegations which have been made. Such persons should be instructed not to discuss the matter in controversy with one another, the complainant and/or the responding party. They should be asked if they have done so to date.

Confidential Process

All persons should be instructed that the investigative process is confidential, that they should not repeat the narrative of the interview with others.

Interviews

The general process is to interview the complainant first, followed by the witnesses that appear to be germane as determined by this interview and the investigator’s knowledge of the workplace community.

How the Interview is Conducted

The questions posed should follow the style of an examination in chief. The questions should not be leading, but rather open ended. Questions should be posed to obtain as much specific detail as possible, such as dates, witnesses, locations and similar issues. Each witness should be asked questions to establish whether they have collaborated with others in advance.

The time and date of the interview should be noted. A second person may be present to take verbatim notes of the interview. The person interviewed may be asked to verify the accuracy of the notes. This person should not keep copies of the notes.

All witnesses and all persons should be notified that any retribution against any person taken due to the complaint, participation in the interviews is contrary to law.

Interviewing the Respondent

The investigator should consider in advance allowing the respondent to have access to legal counsel prior to the interview. This is particularly important should the contested issue possibly lead to criminal charges.

The respondent should be told of the substance of the allegations including material facts and any relevant documents should be given to the respondent to review in advance of the interview.

Consideration should be given to interviewing any persons relevant to the issue as revealed by the interview with the respondent.

Should the suspected one request further time to prepare for answer the questions, given that this may be the first opportunity that they have become aware of such details, consider this fairly. The process must be seen as reasonable and considerate.

Follow Up

Some consideration may be given to meeting with the complainant and/or any relevant witnesses following the meeting with suspected one, depending upon the investigator’s judgment of this interview.

The Report

The investigator will make findings of fact based on the above process and also credibility issues. Attention will be given to the demeanour of the witnesses, the absence or presence of corroboration, the consistency of the evidence. On occasion, there may not be a finding of probable facts where issues are in controversy.

The report will likely state a conclusion as to whether the complaint, in the views of the investigator, has been substantiated, or it could determine that such a finding cannot be fairly made, one way or the other, or further, it could state that the allegations are not proven on a balance of probabilities.

The report will not be evidence in legal proceedings. It will be evidence that an investigation has been completed. The report is typically not given to the immediate parties who are instructed only as to the fundamental conclusion of the investigation.

Ontario’s Occupational Health and Safety Act requires also that the complainant be advised of any corrective action taken as result of the investigation.