Jan 14

Introduction to the Theory of Workplace Investigations: The Six Elements

Tags:

This article was written by Roger Beaudry on October 18th 2009.

What follows are my reflections on approaches to conducting more effective investigations into workplace wrongdoing. To simplify matters, I have broken things down into six elements: CONCORDANCE, STANDARDS, THEORIES, TARGETS, EVIDENCE AND PLANNING. Note that I have concentrated on the skills side of investigating workplace wrongdoing rather than on legal concepts that investigators should know to properly conduct investigations. The legal side of things will be for later posts. For each of the six elements, I hope to help readers understand:

  • Why the element is important;
  • What investigators should do in relation to it; and,
  • How they should do it.

CONCORDANCE – YOUR INSURANCE

WHY IT IS IMPORTANT

Effective investigators take measures to maximize CONCORDANCE between the conclusions of the investigation and the events being investigated. In workplace investigations, there are typically at least four versions of the truth:

  • what actually happened;
  • one side’s version of what happened;
  • the other side’s version of what happened; and,
  • at the end of the investigation, the investigator’s conclusions about what happened.

Those four versions are rarely the same.

Investigators work as historians, or a kind of archaeologist, to rebuild what happened in the past based on EVIDENCE available in the present. Rebuilding the past from EVIDENCE in the present is extremely challenging. It is highly unlikely that dinosaurs looked exactly as we see them in museums today. What we see in museums is an approximation of what existed in the past built on the EVIDENCE we have available to us in the present. It is impossible to build a perfect reconstruction of the past in the present.

Effective workplace investigators strive to reconstruct and reflect in their conclusions a version of what happened that CONCORDS as best as possible with what actually happened in real life.  Doing that is a safeguard against making mistakes and being caught off guard with inaccurate conclusions. It also contributes to constructing a fairer and more respectful workplace by making it more likely that people in the workplace will consider the results of investigations to be fair and accurate.

There are many pressures that can distort CONCORDANCE between the investigation’s conclusions and the historical truth of what actually happened. These include the following:

PARTY/WITNESS PARTISANSHIP:  In addition to the raw challenge of rebuilding the past from EVIDENCE in the present, workplace investigators face the difficulty of having to reconstruct events in the shadow of conflict – in circumstances where there is a dispute about what happened. Most times workplace investigators rebuild the past while each side and the witnesses bombard them with what can be radically different versions of what happened. This serves to distort things, and is a challenge to CONCORDANCE.

INVESTIGATOR PARTISANSHIP: To make things even more difficult, the person investigating may face pressure to bend the facts to favour one or the other party. For example, a manager conducting an investigation into the actions of a problematic employee might feel pressure or a tendency to want to rebuild a version of what happened that is favourable to the employer. This pressure or tendency to take a partisan view of the facts may further threaten CONCORDANCE.

PRECONCEPTIONS: Very often the person conducting a workplace investigation (for example, a manager or a labour relations officer) will know the parties involved and have preconceptions of what might have actually happened. This raises a tendency to want to base the investigation’s conclusions on preconceptions rather than on the EVIDENCE. This can further harm CONCORDANCE.

PRESSURE TO STOP LOOKING:  Investigating workplace wrongdoing is hard and time consuming work. In most cases, there are strong pressures to stop looking and conclude the investigation as soon as possible. This can push busy managers and others conducting investigations to stop before all the EVIDENCE is in and enough pieces of the puzzle are available to provide a decent chance of CONCORDANCE.

LITIGATION: Most workplace investigations operate in the shadow of actual or potential litigation, in the sense that the parties may at some point find themselves having to prove or disprove the facts being investigated in front of an arbitrator, a judge or some other third party decision maker. This creates a tendency to want to focus on finding EVIDENCE that supports whatever side of the litigation the investigator feels aligned with. This can harm CONCORDANCE, and worse, actually prejudice one’s position in litigation by preventing the investigation from uncovering EVIDENCE harmful to the case. When facing litigation, it is as important to find the harmful EVIDENCE as it is to find that which supports your case. CONCORDANCE puts you in a better position to conduct effective litigation.

WHAT YOU SHOULD DO

Here are a few things to keep in mind:

EMBRACE YOUR FALLIBILITY: Investigations are challenging work and it is easy to make a mistake. Start with the fear that you will get it wrong and adopt the mindset that you are fighting to get is as right as possible. Accept that

CONCORDANCE is a real challenge and that your version of the truth will never be perfect. Make your goal minimizing how imperfect your conclusions will be.

RECOGNIZE THE PARTISANSHIP OF THE PARTIES (AND OF SOME WITNESSES) AND ACCOUNT FOR IT: Know that people will be focussed on defending their point of view and that they will distort the past. This is normal! Do not overreact. Evaluate the reliability of what people say in the context of their partisanship.

ACCEPT YOUR OWN PARTISANSHIP AND GUARD AGAINST IT: Do not believe in the myth of your neutrality. We all have preconceptions and most people who conduct workplace investigations are employees of one side or the other (the employer or the union). Focus on your partisanship, understand how your own natural biases open you up to making mistakes and guard against this.

UNDERSTAND AND GUARD AGAINST THE PRESSURES TO STOP SEARCHING FOR MORE EVIDENCE: Appreciate that you may at various points during the investigation feel the urge to go no further. When you feel that pressure become critical and assess whether you should objectively go further, or whether you really do have enough to reach reliable conclusions. Realise that workplace investigations take time. A poorly concluded investigation can lead to wasteful and unnecessary litigation that can easily sap more time, energy and resources than what would have been expended on a well conducted investigation.

HOW YOU SHOULD DO IT

Rely on other Six Elements (see below for an explanation of STANDARDS, THEORIES, TARGETS, EVIDENCE AND PROCESS) and strive for CONCORDANCE:

  • Know and focus on the STANDARDS;
  • Construct and constantly revise your perception of the THEORIES of the parties;
  • Compile and constantly revise your list of TARGETS;
  • Constantly seek to shower each TARGET with as much EVIDENCE as you can find;
  • Constantly measure how well the EVIDENCE irrigates each of your TARGETS;
  • Identify dry TARGETS and seek sources of EVIDENCE from which they might be irrigated;
  • Constantly challenge the reliability of the EVIDENCE; and,
  • Construct and implement an effective PROCESS.

 

STANDARDS – YOUR COMPASS

WHY THEY ARE IMPORTANT

Throughout the investigation you need direction – you need to know where to focus your efforts. Knowing the applicable STANDARDS of fairness that the ultimate decision maker(s) will use to implement the results of the investigation helps give you that direction. Consider them your compass.

Workplace investigations collect and organize EVIDENCE to help decision makers such as managers, arbitrators, hearing officers, judges, etc… render informed decisions. For a workplace investigator to know what EVIDENCE to search for, he or she needs to know the STANDARDS of fairness that will be applied by and influence the decision maker(s). Those STANDARDS of fairness include the following:

  • In a unionised workplace, the collective agreement (the vision of fairness that the employer and the union have negotiated);
  • Legislation (what the legislature has deemed to be fair);
  • How arbitrators have interpreted collective agreements (what arbitrators have deemed to be fair);
  • How judges have interpreted the law as it applies to the workplace (what judges have deemed to be fair);
  • Employer policies and procedures (what the employer has deemed to be fair); and,
  • Fair play and what is needed to make the workplace function properly (community and workplace STANDARDS of what is fair).

WHAT YOU SHOULD DO

Figure out what the STANDARDS are before starting the investigation. As the investigation proceeds and EVIDENCE is collected, revise and get more information about the relevant STANDARDS to make sure you understand them and how they apply to the case.

HOW YOU SHOULD DO IT

At the outset, research the STANDARDS that might influence the decision maker(s). Consult:

  • Your labour relations advisors;
  • The relevant parts of the collective agreement;
  • Applicable internal employer policies and guidelines;
  • Any relevant legislation (for example, human rights legislation);
  • The arbitral jurisprudence; and/or,
  • Legal counsel.

Put together a list of the relevant STANDARDS. As the investigation proceeds and you collect more EVIDENCE, constantly challenge yourself to determine whether your information about the STANDARDS is complete and if necessary dig deeper to better understand of the relevant STANDARDS.

 

THEORIES – THE BASES TO COVER

WHY THEY ARE IMPORTANT

Before the decision maker (manager, arbitrator, judge etc…), each party (for example, the employee disciplined and the employer) will advance a THEORY of why he, she or it is correct and ought to benefit from a favourable decision. These THEORIES help identify the EVIDENCE that needs to be TARGETED by the investigation.

For example, a complainant in a harassment case might advance the following THEORY:

My manager has been harassing me by preventing me from exercising my right to take breaks and have flexible working hours because she hates people of my racial heritage. Other people who are not of my heritage are given preferential treatment for their breaks and are granted flexible hours.

The respondent’s THEORY in the same case might be:

I have nothing against people of his race. I have not harassed him in any way. The reason I have been limiting his breaks and his access to more flexible hours is because he has been taking longer breaks than are allowed by the collective agreement and we do not have enough staff to cover client demand at the times he wants to not be in the office.

Knowing each of these THEORIES helps the investigator understand what EVIDENCE needs to be TARGETED to complete the investigation. An investigation that does not cover all of the EVIDENCE needed to reasonably prove or disprove all of the THEORIES that might properly be advanced before the ultimate decision maker(s) will be incomplete.

WHAT YOU SHOULD DO

At the time of the investigation the parties or one of them may not yet have reflected on and clearly established their THEORY. It can be left up to the investigator to correctly discern the THEORIES the parties are likely to be in a position to advance by the time the case gets to a decision maker. A good investigator should:

  • Determine the THEORY each side is advancing and is reasonably likely to be in a position to advance before the decision maker(s);
  • Make sure the TARGETS cover the ground of these THEORIES (see below) so that all the relevant EVIDENCE is collected;
  • Constantly reassess and where necessary revise his or her vision of the THEORIES as new information is obtained in the investigation; and,
  • Refer back to the THEORIES throughout the investigation and make sure they have been covered.

HOW YOU SHOULD DO IT

A party’s THEORY is the underlying reason he, she or it can properly advance for why a right thinking reasonable person (i.e., the decision maker(s)) with knowledge of the STANDARDS and the facts should render a decision in his, her or its favour.

To determine the THEORIES, put yourself in the shoes of each party. Reflect on the STANDARDS and on the facts and force yourself to answer in one short paragraph the question: If I was that party, why should I believe that I will win in front of the decision maker(s)? Write down each party’s THEORY or potential THEORIES. Reassess your view of each side’s THEORY as the investigation proceeds and, if necessary, revise.

 

TARGETS – WHAT YOU ARE AIMING TO IRRIGATE

WHY THEY ARE IMPORTANT

TARGETS are those things that each side needs to prove to establish its THEORY and disprove the opposing side’s THEORY in front of the decision maker(s). Think of THEORIES as the high level idea that is being advanced and the TARGETS as those bits and pieces that need to be proven to establish the THEORIES.

Lets return to the example of the manager that states that she was not racially motivated in her actions of limiting an employee’s breaks and his access to more flexible hours – she claims that she was trying to prevent the complainant from taking longer breaks than are allowed by the collective agreement and that the complainant wanted to exercise his right to flexible hours to be away from work at times when there was not enough staff to cover client demands. After researching the appropriate STANDARDS (for example, what the collective agreement has to say on the length of breaks and flexible hours) and reflecting on the THEORIES, some of the TARGETS might include (this list is not meant to be exhaustive) the following:

  • EVIDENCE that establishes the length of the breaks that the complainant has been taking;
  • EVIDENCE that establishes the times at which the complainant wants to be away from the office in accordance with his request for more flexible hours;
  • EVIDENCE that establishes the demand for client services at the times that the complainant wants to be out of the office;
  • EVIDENCE that establishes the staff available to satisfy the demand for client services at the times that the complainant wants to be out of the office;
  • EVIDENCE of the level and standards of service the employer has set for the workplace (number of employees required by the employer to meet a particular level of demand for client services);
  • EVIDENCE that establishes the length of breaks given to employees that are not of the complainant’s racial heritage;
  • EVIDENCE that establishes the flexible hours granted to employees that are not of the complainant’s racial heritage; and,
  • EVIDENCE that establishes behaviour by the manager that would indicate that she has or does not have a prejudice towards the complainant and/or his racial heritage.

Knowing the TARGETS allows you to know what EVIDENCE you need to find.

WHAT YOU SHOULD DO

Generate a list of the relevant TARGETS. Where necessary, revise your list of TARGETS as you learn more in the course of the investigation.

HOW YOU SHOULD DO IT

Put yourself in the shoes of each party, focus on the STANDARDS, the facts and that party’s THEORY, and ask yourself what that party needs to prove to win before the decision maker(s). List those things!

 

EVIDENCE – WATER FOR IRRIGATING TARGETS

WHY IT IS IMPORTANT

Supposition or conjecture has or should have no value before a decision maker(s). What counts is EVIDENCE. The basic rule: without EVIDENCE of it, IT DOES NOT EXIST no matter how convinced you might be that you have it right!

WHAT YOU SHOULD DO

Collect ALL of the admissible EVIDENCE that is relevant to each of the TARGETS. Guard against looking only for EVIDENCE that is favourable to your constituency. Find the damaging EVIDENCE as well to inform your decision and so that you do not get surprised by it down the road.

HOW YOU SHOULD DO IT

Look for and explore sources of:

  • Testimonial EVIDENCE – witnesses;
  • Documentary EVIDENCE – documents; and,
  • Real EVIDENCE – things that might be put to the decision maker(s) (for example, a surveillance video showing an altercation in the workplace).

Collect and preserve any EVIDENCE that is relevant to a TARGET.

 

PLANNING – BEING STRATEGIC

WHY IT IS IMPORTANT

To achieve goals one must be strategic and have a plan. Effective investigators try to ensure that their conclusions are as complete and accurate as they can make them. To achieve that goal you have to be strategic and you have to plan.

WHAT YOU SHOULD DO

The steps are:

  • Prepare;
  • Collect;
  • Preserve;
  • Evaluate/re-evaluate; and,
  • Then conclude.

HOW YOU SHOULD DO IT

PREPARE: When the file hits your desk, assess what it tells you about the STANDARDS, THEORIES, TARGETS and EVIDENCE. Before going further, as best you can, do the research you need to get a preliminary idea of what the STANDARDS, THEORIES, TARGETS and potential EVIDENCE might be. Ask whether this is a case that is worthy of investigation and if there are ways of resolving it other than through an investigation. Consider the impact of the investigation on the workplace.

COLLECT: Decide who needs to be interviewed first – in the case of an investigation conducted by the employer this typically will be the complainant. Decide when you will interview the person being complained about – do you want to interview them immediately after the complainant or do you need to interview others first (for example, if the meeting with the complainant reveals new allegations by other complainants). Next interview the other witnesses on each side in a logical order. When interviewing witnesses be mindful of any right they might have to be accompanied by an advisor (for example, a union representative). With regard to witness interviews consider the following template:

  • Ground rules (for example, confidentiality and the use to which the witness’ EVIDENCE could be put to);
  • Storytelling (letting the witness tell their story in an uninterrupted way);
  • Questions to clarify and obtain further EVIDENCE;
  • Preservation of EVIDENCE (having the witness sign a statement); and,
  • Next steps – explaining to the witness what will happen next.

After interviewing the witnesses, consider re-interviewing the parties (the complainant and the person who is complained about) and any other witness that needs to be re-interviewed as a result of new information you learned. Re-interviewing the complainant and/or the person complained of can be a good way to test the EVIDENCE you have collected and your conclusions.

PRESERVE: Preserve the EVIDENCE you collect. For example, consider having the witnesses sign statements.

EVALUATE/RE-EVALUATE: Ensure that the EVIDENCE collected is reliable and admissible. Constantly re-evaluate to determine if your view of the STANDARDS, the THEORIES and the TARGETS is complete. Critically assess how well the EVIDENCE irrigates each of the TARGETS.

CONCLUDE: Consider who will have the burden of proof before the decision maker(s) and whether that burden has been met. Let the EVIDENCE drive the conclusions – if it is not established by the EVIDENCE, it does not exist! Guard against concluding before all the EVIDENCE is in. Put your conclusions in the format required by the process you are involved in (a letter, a report etc…). Communicate your findings to the parties and the decision maker(s).

 

FINAL WORD

There is of course much more that needs to be said about making workplace investigations effective. That said, these six elements (CONCORDANCE, STANDARDS, THEORIES, TARGETS, EVIDENCE and PROCESS) are a beginning and a template upon which to build.

I will provide more guidance in future posts.

No comments yet.

Leave a Comment

reset all fields