WHAT TO DO WITH YOUR WORKPLACE INVESTIGATION REPORT

WHAT TO DO WITH YOUR WORKPLACE INVESTIGATION REPORT

By Cynthia Lazar

You have made the decision to investigate and chosen the appropriate investigator. (See Selecting a Workplace Investigator in the Spring 2021 issue of HRmatters.) The investigation is complete.

Now what? How do you use the report? How much of it do you disclose and to whom? And how long do you retain it?

USING THE REPORT

At the outset, you will want to ensure the investigation and report were reasonably done. This does not mean you should interfere with the investigator’s process or findings. Rather, you want to evaluate if the basic process was sound. An investigation report should set out the investigation process, evidence gathered, findings and the reason for the findings, including the evidentiary standard applied. Depending on the scope of the investigation, relevant workplace policies should be identified and considered. If there are clear problems with the report, such as failure to interview important witnesses, obvious bias or conclusions without an evidentiary basis, you will want to carefully consider how much weight to give to the report and whether it is feasible to have it rectified or redone.

Once you are satisfied the report is proper, you will need to decide what to do with the findings. If it’s determined the complaint is ‘unsubstantiated,’ the complainant should not suffer negative consequences unless it is specifically found that the complaint was malicious. This is very

rare. You will also want to consider whether there are other remedial actions that should be taken. Sometimes a violation of policy is not established but the investigation sheds light on other issues in the workplace. For example, an investigation into a complaint of harassment by a manager may uncover behaviour that falls short of harassment; however, it indicates a poor management style. If the complaint is substantiated, you will need to consider what remedial and/or disciplinary actions are merited.

If the report indicates undesirable behaviour on the part of someone who was not treated as a respondent, you need to investigate that conduct separately. This time, give the person involved the appropriate cautions and opportunity to respond.

DISCLOSURE

At a minimum, the complainant and respondent should be advised when the investigation is complete and the results (for example, whether the complaint has been substantiated or not). Beyond that, workplace policies or collective agreements may provide guidelines for disclosure and what information the parties are entitled to. Often, parties are provided with an ‘executive summary’ that contains 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 solicitor-client privileged or prepared in contemplation of litigation, then legal counsel should be consulted prior to disclosing any part of the report. Privilege may be lost, sometimes accidentally, and care should be taken.

For federally regulated employers, the new Work Place Harassment and Violence Prevention Regulations require that an investigator’s report be provided to the principal party, responding party, workplace committee or health and safety representative and, in some circumstances, designated recipient. It must include a general description of the occurrence, investigator’s conclusions and recommendations to eliminate or minimize the risk of a similar occurrence. It must not reveal, directly or indirectly, the identity of persons involved in an occurrence or the resolution process.

When possible, a person not involved in the investigation should be the one to communicate the findings to the complainant and respondent. This should be done with sensitivity, as it is likely a difficult and emotional experience for the person involved. Both the complainant and respondent should be provided with information about any 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 don’t have an answer on the spot or want to take time to consider the answer, indicate that you will respond to them later and then ensure that you do.

Both the complainant and respondent should be cautioned about retaliation.

WHEN DEALING WITH THE INVESTIGATION MATERIAL, IT MUST BE REMEMBERED THAT SOME OF THE INFORMATION MAY BE STORED ELECTRONICALLY AND SHOULD BE DEALT WITH IN THE SAME MANNER AS HARD COPIES.

RETENTION

Post-investigation, you will want to consider what to do with the report itself.

Where a complaint is substantiated, you will want to retain the report in a confidential file until the time limitation for filing a wrongful/constructive dismissal claim has elapsed. In Manitoba, this is currently six years. It can be kept in the respondent’s file in the same manner as other disciplinary material and referenced in the complainant’s file in case the complainant claims a constructive dismissal in the future.

If the complaint is not substantiated, then neither the complaint nor the report should be referenced in the respondent’s personnel file. It would be wise to retain the report in a separate file for six years in case the complainant subsequently alleges a constructive dismissal.

In a unionized environment, the report should be retained in the manner and for the time set out in the collective agreement. Unless it is contrary to the collective agreement, the report should be retained for at least three years, as current Manitoba workplace safety and health legislation requires that employers review/revise their policies every three years and this can be helpful in that process. This will also capture the filing timelines for workplace safety and health prosecutions (two years) and human rights complaints (one year).

When dealing with the investigation material, it must be remembered that some of the information may be stored electronically and should be dealt with in the same manner as hard copies. Further, care should be taken to maintain confidentiality in the destruction of this material.

Workplace investigation reports can be very helpful tools but when handled incorrectly, they can introduce new problems. Care should be taken in determining the use, disclosure, retention and destruction of such reports.

ABOUT THE AUTHOR: Cynthia Lazar is a Lawyer and Workplace Investigator at Taylor McCaffrey LLP. She can be reached at clazar@tmlawyers.com or 204-988-0300.