Investigations

The steps of a workplace investigation depend on what the case requires: there is no “one-size-fits-all” approach.

Generally, an investigation involves two stages: (1) gathering evidence (e.g., interviewing the parties and witnesses and collecting documentary evidence) and (2) preparing an investigation report.

Generally, the parties are the complainant (the person who made the complaint) and the respondent (the person who is the subject of the complaint).

There may be more than one complainant or respondent in an investigation.

A witness is someone interviewed because they may have information relevant to one or more allegations. Generally, their conduct is not at issue.

If a party believes that a witness may have evidence relevant to an allegation, it is important to share that information with the investigator.

However, the investigator ultimately decides which witnesses to interview, based on factors such as the relevance of the proposed evidence and confidentiality considerations.

The evidence collected depends on the nature of the allegations and the individuals involved.

In addition to interviewing the parties, investigators may gather information from witnesses and collect documentary evidence.

A reply interview typically takes place after a party’s initial interview and allows them to respond to new evidence gathered from other sources.

It may not be necessary if the initial evidence is not contradicted by later evidence.

Timeliness is important in all investigations. However, there is usually no fixed timeline for completing one, as the duration depends on the circumstances of the case.

For example, a case involving multiple allegations will typically take longer to complete than one involving only a few.

That said, some factors are beyond an investigator’s control and may extend the timeline—for instance, when a party is not immediately available for an interview.

After an investigator has finished collecting evidence, they make findings of fact for each of the allegations. This means they decide, on a balance of probabilities, whether the alleged conduct occurred.

For example, if a complainant alleges that a respondent yelled in a meeting, the finding of fact the investigator must make is whether the respondent did or did not yell.

The balance of probabilities is the standard of proof that investigators apply when making findings of fact (i.e., when deciding what occurred). The standard of proof refers to the degree of certainty an investigator must reach to decide that an alleged event occurred.

When applying the balance of probabilities standard, the investigator must decide whether the alleged conduct is more likely than not to have occurred. In other words, they must be more than 50% satisfied.

For context, the balance of probabilities standard in workplace investigations is different from the higher standard used in criminal trials in Canada. In those cases, the decision maker must be satisfied “beyond a reasonable doubt.”

When there is conflicting evidence about an allegation, the investigator must decide which version to accept. To do so, they assess the credibility of each person who provides evidence. In simple terms, credibility refers to whether a person’s evidence is honest and reliable.

“Honesty” refers to whether the person was sincere or candid when giving their evidence. For example, a person who intentionally gives misleading evidence about an event is not honest.

“Reliability” refers to whether the person can accurately relay their evidence. A person may give sincere evidence (i.e., they believe it to be true), but may not be able to accurately relay it; for example, if their recollection is affected by the passage of time.

Confidentiality is important to ensure the integrity of the evidence. If a party discusses their evidence with a witness, for example, it may affect the witness’s ability to provide their own evidence honestly and accurately.

Confidentiality also helps minimize disruption in the workplace and protect the privacy of those involved.