Workplace Violence Investigation Dos & Don’ts
√ DO select an impartial and objective investigative team
√ DO let the accused answer allegations
√ DO give the accused the detailed information they need to answer those allegations
√ DO interview all relevant witnesses, including those the accused asks you to interview
√ DO interview witnesses thoroughly
√ DO gather all relevant information
√ DO thoroughly document each step of the investigation
X DON’T unnecessarily delay the investigation
X DON’T put a speedy investigation ahead of a fair one
X DON’T interview witnesses in the presence of other witnesses
X DON’T deviate from company investigation policy and procedures without justification
Trap #1: Waiting Too Long to Investigate
Investigations must be conducted promptly. As with any investigation, the sooner you begin, the better evidence you’re likely to gather. Over time, memories fade, witnesses leave the company and physical evidence disappears. Thus, prompt investigations are more likely to lead to appropriate results—and less likely to lead to liability.
In contrast, delaying an investigation unnecessarily undermines the investigation’s effectiveness and may also harm the accused, put a strain on the employment relationship and create a difficult working environment for everyone involved.
Keep in mind that although speed is important, it isn’t the paramount concern. Fairness is. Rushing an investigation is just as bad as dragging your feet.
Trap #2: Relying on a Biased or Incompetent Investigator
The person carrying out the investigation must be completely impartial and not related to or in any other special relationship with either the accuser or accused. For example, supervisors shouldn’t investigate subordinates and vice versa. Individuals also shouldn’t investigate if they have a history of conflict with the accused or the accuser. Nor should the investigators have a personal or professional stake in the outcome, such as supervisors determined to use the investigation to cover up wrongdoing in their departments for which they’d be held accountable if the claim proves to have merit.
In addition, the person who investigates the complaint must have the necessary competency, skills and disposition to do so, i.e., someone who:
> Is impartial and is seen by the parties to be impartial;
> Has knowledge, training and experience in issues relating to workplace violence; and
> Has knowledge of relevant legislation.
Of course, it’s not always easy to find objective and impartial people to investigate workplace violence allegations internally, especially in a small company where everyone may be affected by the allegations and know the parties involved. And the people who are objective might lack the qualifications to do a thorough and competent investigation. As a result, you may need to go outside your company to find the appropriate investigator.
Trap #3: Not Getting Both Sides of the Story
Some companies make the mistake of talking only to the alleged victim. An investigation is only fair if you also give the accused an opportunity to defend himself. You must also give the accused enough facts about the allegations, including dates and specific details, to enable him to respond.
Trap #4: Not Interviewing Third Parties
It’s important to interview not only the accuser and accused but also anyone else who may have relevant information about the situation, especially eyewitnesses. Document the results of these interviews and, when appropriate, get written statements from third party witnesses.
Trap #5: Failing to Gather All Relevant Information
The investigation must be thorough and earnest. You can’t simply go through the motions. The goal of the investigation should be to gather all relevant information so that appropriate decisions can be made. An inadequate, superficial investigation is likely to lead to liability.
Trap #6: Asking “Leading” Questions
It’s not just how many interviews you do but how you do them. One common interview mistake to avoid is asking leading questions—that is, phrasing questions in a manner that suggests the “correct” answer to the person being questioned:
Wrong: “Did Joe’s conduct make you feel scared and afraid for your safety?”
Right: “How did Joe’s conduct make you feel?”
Trap #7: Interviewing Witnesses in the Presence of Each Other
Efforts should be taken to minimize the risk of witness collaboration and intimidation. Interviewing the accuser in front of the accused can intimidate the accuser. Even third party witnesses can be influenced by the presence or statements of others. So witnesses should be interviewed separately and not in the presence of other witnesses. Doing so minimizes not only the risk of intimidation but also false testimony.
Example: A court found that investigators should have warned two witnesses not to confer when putting their complaints of sexual harassment in writing. The court also criticized the investigator for allowing the witnesses to give their accounts together in the same room at the same time [C.R. V. Schneider].
Trap #8: Not Following Company Policy and Procedure
A sure-fire way to taint an investigation is to deviate from your company’s investigation policies and procedures. So stick to company policy as much as possible. However, you can follow different investigation procedures provided that you have a solid justification for doing so.
Trap #9: Not Documenting Investigation
It’s important not only to conduct an investigation properly but also to thoroughly document the investigation’s various steps. Without such a paper trail, it’s extremely difficult to retrace your steps and prove that the investigation was properly conducted.
Example: An employer didn’t make detailed notes of witness interviews he conducted; he just made a general synopsis of what each witness said. The court said this documentation wasn’t adequate for determining what the witnesses actually said in their interviews [C.R. v. Schneider].