External investigations can get expensive. Most investigators charge an hourly rate, so saving on costs usually means assisting with making the process more efficient.
Good planning and communication with your external investigator is essential. Understanding the investigation process and being able to anticipate and prepare for what the investigator will require can make a big difference.
Try these tips for keeping costs down.
Review your Policy
Long before you receive a complaint, review your policy for time consuming processes that may not be necessary in all cases. Though its good to have a procedure set down, the more detailed it is, the more costly it can become. The more disclosure and reporting you require, the longer the process will take. For example – do you require multiple drafts of the report that must be reviewed by all parties at each level? Do you require the entire report be provided to the parties (this will require redacting) instead of a summary? Do you require signed witness statements – and must these be reviewed by the parties? These practices all mean a larger investment of time by the investigator.
Define the scope of the investigation
Put the mandate of the investigation in writing.
Define whether you need the investigator to:
- figure out what happened (i.e. – make findings of fact);
- assess whether what happened was a violation of law or policy; and/or
- provide recommendations in light of those findings.
You can also consider whether the investigation should be limited temporally or to specific events. It will be helpful to establish clear boundaries around which allegations are to be considered by the investigator, especially where complaints are of a general nature, occur over an extended time period or describe a pattern of conduct.
Often when investigating an event, other areas and incidents of potential misconduct may come to light. It is important that the investigator be given clear terms of reference as to what incident he/she is investigating. For example, retaliation is an example that frequently will come up, and it often makes sense to investigate it at the same time. You could choose to include that in the mandate. If other matters arise, the investigator can be instructed to seek authorization from the employer before looking at the additional incidents.
Ask for a budget upfront
Upon retention, an external investigator can estimate the cost and time required for each investigation phase given the specific circumstances of the proposed investigation.
Depending on our mandate, the budget we provide to clients may include the following:
- Preliminary assessment
- Informing the respondent
- Review of documentary materials
- Administrative time (booking interviews, etc)
- Interview prep
- Interviews
- Witness summaries
- Follow-up interviews
- Evidence Analysis
- Report Preparation
- Recommendation letter
- Letters to parties
- Mileage
- Travel Time
- Accommodation and Transportation
- Meals
- Interview Room fees
You can request periodic updates of the budget and timeline as the investigation unfolds to gauge whether the investigation is on track.
Communicate (appropriately) with the investigator:
- The investigator should not determine the appropriate discipline or be involved in discipline decisions. This can affect their neutrality.
- Questions around discipline should be directed to your company’s HR professional or employment lawyer.
- The investigator is usually not provided with the respondent’s personnel file. Past incidents will be considered after the investigation, when determining appropriate discipline.
- The HR professional/manager should not spend time outside of a formal interview giving the investigator their opinion on what happened or the personalities of the parties.
- It is acceptable and wise to ask the investigator to update you on their timeline and budget throughout the process.
Have Documents Organized:
- Be ready to provide documents to give the investigator a background of the company and positions of parties (org chart, job descriptions, list of employees on team with contact info, policies, map of facility)
- Investigators should be told who was involved in the incident as well as any potential witnesses and when the incident occurred.
- Be ready to provide supporting documents such as punch clock records, pay records, calendar of events, written complaints and details provided to supervisors in emails
- Be ready to provide records on relevant training provided
- Identify any acronyms, explain charts
- Organize and identify emails and photos in the Employer’s possession
Provide Administrative Assistance:
- Book rooms and interviews.
- Contact union reps in advance.
- Coordinate with employees and supervisors on the day of their interview to help things go smoothly.
- Ensure there is coffee, water, facial tissue, batteries, a Wi-Fi password, access to a printer, a private breakout space, etc.
- Have a contact person available during the course of the investigation who can search for relevant documents the investigator identifies.
Avoid Cutting Corners:
Independent investigators have an obligation to reasonably pursue all leads that directly relate to the subject of their investigation. Investigations are a process. The steps necessary to complete a thorough and fair investigation are not always obvious at the outset. As the investigation unfolds, new allegations may surface, and unanticipated witnesses may be identified.
Trying to limit who the investigator interviews or which documents s/he should review may compromise the integrity and independence of the investigation. These decisions should be left to the investigator.
You should NOT try to cut costs by:
- Dictating to the investigator who they should or should not interview or what documents are relevant;
- hiding information;
- hiring an investigator who is not qualified; or
- limiting the report to the extent it is not legally defensible (you want the investigator to provide reasons).
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Are you dealing with an issue in your workplace or in need of management training on how to deal with workplace conflicts? Contact Andrea MacNevin for training, mediation, and investigation assistance.
Andrea MacNevin is an associate lawyer with Barteaux Lawyers. In addition to conducting independent external investigations and mediations throughout the Atlantic provinces, her practice includes advising on day-to-day workplace issues and representing employers before Nova Scotia courts and tribunals in all manner of disputes.
This publication provides general information and should not be relied on as legal advice or opinion. Should you have any questions or require legal advice, we would be pleased to assist you with any matters related to the subject matter of this publication or any legal services provided by Barteaux Labour and Employment Lawyers Inc. Please contact us for assistance.
