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The Internal Investigation: A Means to an End

Posted By By Emily Kaufer, B.C.L. /LL.B., Manager, Human Rights, Harassment & Privacy Compliance, Air Canada, Tuesday, July 18, 2017
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Originally published on March 26, 2017

Roughly a year ago I read an eBook entitled “The Art of the Internal Investigation”.  The term “art” refers to skill and knowledge acquired by experience or observation.  Being a “good investigator” is a proficiency, much like being a good negotiator. But as this publication recognizes, there is a unique skill applied to an internal workplace investigation. As an internal workplace investigator, a “custodian of precedent”, you may be asked to recommend the implementation of disciplinary action, if appropriate. You also may be relied upon for your knowledge of your organization’s culture, and supporting the parties after a complaint is filed and an investigation is completed. This mission is in its truest of forms an “art”.

The idea of an “internal investigations model” is not novel. I would like to think that we have successfully moved past the “why”, and are now able to better understand and articulate inherent benefits of a corporation’s internal investigations model. Canadian courts have reinforced that adequate investigations, at a minimum, are advisable and sometimes even required to address internal complaints. That "an employer owes a duty to treat its employees in a fair and proper manner… [and] this duty goes as far to promote the interest of its employees and to see that the work atmosphere is conducive to the well-being of its employees.”[1] However, if we take the Ghomeshi investigation as a case study, we see that the findings revealed several key pieces of information. For example, CBC’s internal complaint mechanism was inconsistently followed, and also, relied too heavily on the submission of “formal” complaints, even though numerous parties were aware of Ghomeshi’s problematic behavior.

This does not mean that the answer is that all workplace complaints must be handled by an external party. Contrarily, if the employer is equipped with an individual, or a group of individuals, that has the experience and necessary skill to conduct prompt, thorough and impartial workplace investigations, these matters can be dealt with internally, and the employer would only seek external support in rare circumstances.

The case from the Ontario Human Rights Tribunal, Zambito v. LIUNA Local [2], is a perfect example of a well-executed internal workplace investigation. The complainant (or applicant in this case) was of Italian/Sicilian descent, and alleged that his co-worker subjected him to harassing comments about his nationality and family. He also stated that his employer violated his human rights, by failing to take reasonable steps to respond to and address his complaint. The employer denied this, and stated it conducted a thorough investigation.

The internal complaint was investigated by the employer’s in-house counsel. In the Tribunal’s decision, the Adjudicator noted that the internal investigator, who practiced labour and employment law for twenty years, did not know the complainant/applicant. Moreover, the investigator was deemed to be “neutral”, “skilled” and “competent”. The investigator interviewed the complainant/applicant; interviewed the respondent; interviewed two eye witnesses to the incident, and two other witnesses who saw the complainant/applicant immediately after the incident. These interviews were all completed within two and a half weeks after the incident and a thorough written report was prepared four weeks after the incident. The Adjudicator therefore determined that the investigation process “was straightforward, logical, internally consistent, and detailed”[3], and as a result, the application was dismissed.

So what do we continue to learn about internal investigations? The challenges internal investigators face remain plentiful: Ethics. Can we truly be “impartial” if we have friends or socialize with employees outside of work? Being an embedded resource. Do people who know your job approach you with skepticism and pessimism? “Unconscious biases”. Do we tend to favor management over an individual contributor, or vice versa? Do we use our knowledge unethically and overlook a complaint when it is made by “THAT chronic complainer”? The truth is the answers to these questions are complex and not straightforward. Ultimately, a certain level of self-reflection for internal investigators is necessary but will likely also lead to more questions. The goal is to continually acknowledge and consider the range of variables present in most internal investigations.  It is precisely these ongoing considerations that make conducting internal investigations a true “art”.

[1] Robinson v. Royal Canadian Mint, [1992] O.J (Ont. Gen. Div.) aff’d [1997] O.J. No. 1966 (Ont. C.A.) (p.10).

[2] 183, 2015 HRTO, 605 (CanLII).

[3] Ibid. at para 32.

Tags:  art  internal  internal investigation  internal investigations model 

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