How hiring the right external investigator matters
Two investigations were conducted by external investigators, one by Hill Advisory Services and one by another company (Company X). In each case there were allegations of harassment in the workplace and extensive interviews were conducted.
Case 1, investigated by Company X resulted in a five-day suspension without pay being imposed and the affected employee filed a grievance related to the discipline. The Employer reduced the penalty to a three-day suspension but the case proceeded to arbitration.
Case 2, investigated by Hill Advisory Services, resulted in the termination of a long service employee. The affected employee filed a grievance related to the termination and the case proceeded to arbitration.
In Case 1, there were a number of challenges which culminated in the arbitration panel concluding that the Employer did not prove that the conduct of the Grievor relied upon by the Employer to impose discipline was proven. The Panel set aside the discipline and instructed that the Grievor be made whole for the loss of pay, benefits and any seniority resulting from the suspension.
In Case 2, there were a number of challenges as well, however, the majority of the Arbitration Panel concluded that the Employer had just cause to terminate the Grievor and dismissed the grievance.
The problems with Case 1
One of the major problems with the investigation in the case was that although an extensive number of interviews were held (54 in fact) there was a lack of clear documentation. The final report presented information that had been aggregated and appeared to be conclusions drawn from a number of sources of indefinite nature.
Some problems became apparent in the report. Wording like “Most interviewees appeared committed…” and “The majority of the witnesses appeared credible, reasonable, and fair when providing their information” pointed to some serious concerns.
In the Findings section of the report, Company X made statements like “Several witnesses verified the Complainant’s version of events referred to in her complaint” and “A thorough investigation of the Complainant’s complaint has exposed a history of abusive destructive behaviour of three controlling and manipulative employees.” Company X concluded that there had been breaches to the Employer’s Harassment Policy, and made conclusions related to the Human Rights Code.
Company X concluded that the Grievor had “lied to the investigator” when asked about whether he had overheard a remark. He had replied that he did not recall. The investigator determined that was a lie based on their perception that he would have recalled a comment like the one alleged and so he was not telling the truth.
The Employer accepted this investigation and the findings and suspended the Grievor for 5 days without pay.
The arbitration panel asserted that the report put forth by an external investigator “is nothing more than an explanation as to why the employer levied discipline.” The Employer must still prove the facts giving rise to the discipline.
The Grievor provided a written response to the allegations against him. In addition, Company X interviewed him, however, the interview lasted for 30 minutes and the Grievor testified that the investigator cut him off, did not give him a chance to talk about what he wanted to talk about, and only talked about things that he wanted to talk about. He testified that the investigator would physically put down his pen and cut him off when he spoke.
The Complainant testified that the words in portions of the allegations were the investigator’s words, not hers and she indicated that she first became aware of some of the specific quotes attributed to her when she read the report..
The Panel found that there was no basis for the conclusion that the Grievor had lied to the investigator.
The Panel found that the Employer had failed to prove that the behaviour of the Grievor should have led to discipline.
Hill Advisory Investigation
In our 24 years of Harassment Investigation, we have rarely had a case proceed to Arbitration. However, in this case the Grievor filed a grievance related to his termination. The arbitration panel asserted the same principal, that any investigation held is nothing more than an explanation as to why the employer levied discipline, it is not in essence direct evidence, but rather hearsay.
This is where the similarities end, with the Hill Advisory Services process, we meet with all parties and compile signed statements from all interviewed. In this particular case, witnesses were called by the arbitration panel and asked to confirm their statements were their evidence, which they did as their signatures were present on the documents. Further, these witnesses were then open to cross examination on their statements and the arbitration panel concluded that because of that, the statements could be relied upon as direct evidence. The panel included various portions of the statements given to Hill Advisory Services in the arbitration decision, and included the cross examination on the various points.
The panel found that the Grievor’s behaviour warranted discipline. They turned to the question of whether the termination was appropriate, especially in light of the Grievor’s clear disciplinary record and 22 years of service. The panel found that the Grievor had been informed a number of times that his behaviour was unwelcome, though no formal disciplinary action had been taken and ruled that formal discipline would not have made any difference to his behaviour. The panel dismissed the grievance.
A proper Investigation is a clear and unbiased process that bases any conclusions on facts and helps to keep Employers safe. This philosophy is the reason for many of our techniques and why we conduct investigations in the manner we do. In the Hill Advisory case, the panel relied on many parts of the statements given to the investigators, that were signed and dated, and many portions of the report. There were no statements made by the panel that we had reached conclusions that were not based on the evidence and ultimately, even though a termination of a long service employee with a long service record is a serious decision, the panel supported that decision.
In the other case, comments in the report were questioned, and in our view, some of them were clearly inappropriate, not based on evidence and created the result of putting the Employer at risk.
In the end, the adage “Buyer beware” is appropriate. Know who you are hiring and how they will be conducting the investigation.
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