Welcome to the transcript of the webinar Botched Workplace Investigations: A Case Study on What NOT to Do During an Internal Investigation, presented by Dorian Persaud, senior lawyer at Persaud Employment Law.
- highlighting critical mistakes
- procedural fairness
- confidentiality
This case study is packed with lessons to ensure your investigations are thorough, fair, and legally sound. And will offer actionable insights to help HR professionals and workplace investigators navigate similar scenarios
Introduction
Today we’ll be discussing the botched workplace investigation. We are going to take you through a real investigation and highlight all of the mistakes that were made with a view to helping you avoid making those same mistakes.
My name is Dorian Persaud. I am the senior lawyer at Persaud Employment Law.
We are a team of lawyers who specialize in conducting workplace investigations and helping you to create healthy workplaces through investigations, training, and proactive advice.
Before we get into the case study of the investigation that went off the rails, I’d like to gather some context.
Poll: Does Management Interfere in Your Investigation?
How many of you attending today have had the experience where someone is accused of misconduct, and management, for whatever reason—whether related to the misconduct or personal dislike for the individual—decides they want to terminate that person?
They come to you and say, “Here’s how we see things. We’re going to get rid of this person, and here’s this allegation that has come up. We’d like you to investigate it. And, by the way, we’d like to do this for just cause so we don’t have to pay the individual anything. If you could find some grounds or dig up dirt during the investigation, that would be great.”
I’m going to send out this poll question to you and would appreciate it if you could respond. Let me know if you’ve encountered that scenario, and we’ll give folks a moment to participate before publishing the results.
Insert poll graphic
Okay. I don’t know if those results are showing up on the screen for you. But in terms of the responses, we have eighty percent of you indicating that you have experienced that scenario I just ran through, where, before you’ve been able to understand the allegations and before you even set up the investigation, you’re starting with the conclusion already in mind.
That outcome is already set, and now you are just working towards that outcome. That’s quite an astonishing number—eighty percent of you who have been placed in that situation.
That’s a very difficult situation to be in because instead of approaching the investigation with an open mind. And setting up a process that would allow you to get to the truth and figure out what happened here, and really be driven by the evidence, you’re now pigeonholed into a situation where the end has already been decided, and your process is really geared towards achieving that end.
At worst, fishing or digging for more information to support an allegation of just cause.
So again, that’s a very difficult position to be in, and we’ll see the impact that has on the process that an HR professional would undertake when they’re in that situation and conducting a workplace investigation.
That’s exactly what happened in the case study that we are going to review today.
The Investigation Setup
Background: The Holiday Party Incident
So let’s set this up for you. We have the holiday party for this multinational organization, and they are thrilled to be launching their new Toronto office, so they have invited many employees from neighboring states to attend this event and help launch it.
They have invited clients to be there. HR head offices are located in Illinois, and they’ve flown in some folks from HR to be at this event. So this is a big deal and a great way for them to showcase this new space and kick off the holiday season.
There is a sales employee there—let’s call him Frank—and he shows up in a really flirtatious mood.
From the get-go, he is making some borderline inappropriate comments. He approaches the hostess who’s greeting all the guests and handing out the name tags.
He stares a little too long at her chest, gets his name tag, and asks her, “Which breast do I put this name tag on?” His eyes may linger a little too long on her.
He then goes from there into the function itself, socializing with employees and clients. Two of his colleagues are dressed up—one in all black and the other in all white.
He makes a comment that one of them could be the bad angel, tempting him to do something wrong, and the other could be the good angel, persuading him to do the right thing. He makes this joke, but there is a sexual undertone in the way that those communications unfold.
The party continues in the normal course, and there isn’t much in terms of inappropriate incidents until the end of the party.
One of the senior directors in this company’s New York office, who has been observing Frank all night, is irritated by him for whatever reason. At the end of the evening, some employees are helping to clear tables and pack away some chairs.
The director says to Frank, “Hey, why don’t you help out and be a good team member?” Frank jokes that he is the entertainment—there to entertain the clients and keep them occupied—so he doesn’t help.
This rubs the director the wrong way, and he lays into Frank, insulting him, calling him arrogant, and telling him what a poor team member he is and what a bad example he is setting for the company.
He embarrasses Frank in front of staff and several clients, putting a sour note on the evening.
There’s no complaint to HR, certainly not that evening. And in the days that follow, no issues arise, and the company actually sends Frank to New York to do some work and take some clients to entertain them at that location.
In the meantime, what Frank doesn’t know—and what HR doesn’t know—is this: a director out of New York City really has it in for Frank. He tells his staff, “If Frank looks at you the wrong way or says anything inappropriate or makes you feel awkward, I want you to report that to me and HR right away.” He is zeroed in on getting Frank.
Sure enough, Frank attends the office, sees one of his colleagues, and makes a comment about what she’s wearing. She reports it to human resources.
Frank is immediately sent home and told there’s been a complaint against him. He’s not told at that moment what the allegations are but is sent home and placed on a paid leave of absence. Sitting at home, he’s confused about how these events have unfolded.
While Frank is at home waiting to figure out what the allegations are and what’s actually going on, HR conducts their investigation.
They’ve been in touch with the young lady who came forward with the allegation about the inappropriate comment made about her appearance. They also hear from her boss, the director in the New York office, who starts talking about Frank’s behavior at the firm’s holiday party or the launch event in Toronto.
He goes on to share more, alleging there was an inappropriate conversation Frank had with him a few months ago, where Frank was discussing his relationship with his wife in a way that made this senior manager uncomfortable.
Common Mistakes in Workplace Investigations
Conducting a Fishing Expedition
HR takes these allegations and, instead of investigating just the complaint in front of them, they start contacting other employees in the Toronto office who work with Frank.
They reach out to the managers Frank reports to and ask open-ended questions like:
“Are there any examples of Frank acting inappropriately? Has he said or done something in the past that could breach policy or that you found problematic?“
They go on a fishing expedition to see what else might be out there. These are not people who have come forward with allegations; HR is actively seeking any misconduct that may exist.
This is a big issue because HR has compromised the confidentiality of the process. They haven’t just investigated the allegations in front of them—they’ve opened it up and contacted several employees, making it clear that they are specifically asking if they witnessed Frank saying or doing anything inappropriate.
At the Toronto event, HR asks, “Did you see Frank Duke do or say anything inappropriate?” There’s no question in anyone’s mind what this conversation is about. Moreover, everyone knows that Frank is on a leave of absence, which adds to the growing tension.
This fishing expedition that HR embarks on creates further complications.
By doing so, HR has inadvertently made it clear what the investigation is about. Everyone knows that Frank is on a leave of absence, which contributes to the growing issues.
The core problem stems from this fishing expedition HR embarked on.
Lack of Independence
The second mistake HR makes is the lack of independence. When faced with a complaint of sexual harassment, especially when one of the complainants is a senior manager, it’s important for the investigator to assess their own independence.
Can they conduct the investigation fairly and impartially for all parties involved?
It was very problematic in this case for HR to identify that senior managers were involved. To what extent is HR really going to feel comfortable holding these senior folks accountable?
We will see that issue come into the forefront as we move through this story.
Another issue is the fact that there are allegations of sexual harassment. There were allegations of leering at the beginning of the night and Frank making inappropriate sexualized comments to several individuals.
When undertaking an investigation, especially one involving allegations of sexual misconduct, the investigator should have experience in that area. Or at least have someone with experience to ensure the proper steps are taken and witnesses are approached respectfully.
This recognizes the potential trauma the witnesses may have experienced.
There are a host of details, skills, and facts that inform your approach to preparing and conducting interviews. These are extremely important when it comes to collecting and analyzing evidence and making a credibility assessment.
In this case, neither the director of HR nor the associates he was working with had any experience conducting a workplace investigation, much less one that included allegations of sexual harassment.
These were all essentially sales reps who were promoted into these positions and ultimately found their way to HR. They weren’t the traditional hires, and certainly didn’t follow the typical route into that practice.
When to Consider Using External Investigators
Recognizing the lack of skill and experience in this area should have stood out to HR.
It should have made them think, “Okay, maybe we need to bring in an independent, neutral third party, or find someone in the company who has the experience and independence to conduct this investigation impartially.”
The final point I would make is about recognizing when it’s appropriate to handle an investigation in-house or involve an external third party.
One factor to consider is the risk of litigation. In this case, you are dealing with allegations of sexual harassment and an employee, Frank, who has a substantial number of years of service and a high salary.
If the company’s intention is to dismiss him for cause, this will almost certainly result in litigation.
Very few cases involve someone admitting to misconduct and agreeing to leave without contesting the termination or accepting zero compensation.
This almost never happens, so HR should have recognized the litigation risk and ensured an independent third party conducted the investigation.
Inadequate Procedural Fairness
The third mistake here is the lack of procedural fairness. What we would expect in these situations is for the responding party, Frank, to be given a document summarizing the five or ten allegations made against him. He should have been invited to a meeting to review these allegations and provide a response. However, this was not done.
Instead, they engaged in a fishing expedition. They called Frank into a meeting and immediately confronted him with these allegations in real time.
Many of the allegations thrown at him weren’t even related to the comments made at the holiday party or the interaction he had with his colleague in the New York office.
These were things that allegedly happened two years ago or were said months ago. Frank was left spinning, wondering where all of this was coming from. In that meeting, they presented these allegations as though they had come directly from the individuals involved.
For example, they mentioned an employee in the Toronto office, claiming that two years ago, Frank made a belittling comment about her job and spoke to her and other colleagues in a condescending way.
To be clear, this information was gleaned from their fishing expedition. It wasn’t an actual complaint filed by the employee, but they presented it as though they had complaints from multiple individuals.
During the meeting, Frank did his best to respond, but by the end, he asked for a summary of the allegations, noting that he may have missed details.
He requested a list of the allegations and the individuals who made them, so he could review his records and provide a more complete response to fill in any gaps after the meeting.
The company agreed, but surprisingly, the written list they provided was different from the allegations raised during the meeting.
There’s simply no excuse for that. If the allegations are known and presented in a meeting, there’s no reason for the list to change when it is sent in writing afterward. This was problematic and opened the door to or strengthened the case for bad faith, based on the allegations changing.
Additionally, it raised questions about the credibility of the individuals involved.
- Are they making these allegations?
- Why have they pulled some of these allegations off the table?
It raised many questions from a procedural perspective. When you start out with a messy process and are “winging it,” and your goal is to dig up dirt, one of the things you don’t consider is the issue of procedural fairness.
How do we handle this interview with the responding party?
The HR department really botched the interview and then worsened matters in their follow-up communications with the respondent.
As was their intention from the beginning, the company decided to take the information they had received and terminate the employee for just cause.
Frank, the responding party, after receiving the list, got back to the company and said, “Some of these facts are wrong, and let me give you my side of the story.” He provided them with his evidence and mentioned that there were other people around when these comments were allegedly made.
He suggested meeting with some of these individuals as part of the investigation.
HR, however, wasn’t really interested in doing that. They had the information and the narrative they wanted. They just picked it up and ran with it.
Whether it’s HR, senior management, or other departments working together, they decided to proceed with termination for just cause.
This is problematic because, in conducting their investigation, the employer only substantiated a couple of incidents in Toronto: one comment made to the hostess about where a name tag should be placed and another about two employees, one dressed in black and the other in white, with one described as a good angel and the other as a bad angel.
Even assuming these incidents were true, none of them would rise to the level of just cause for termination in Canada.
That decision to hold these events out to allege that this employee, who had been there for ten years, had these two problematic interactions is extremely problematic, especially considering the seniority of the person and the fact that, on the continuum of behavior, these incidents would fall on the lower end of that scale.
You have here the messy investigation and all the mistakes made along the way. The safest thing for the company to do would be to just package the individual out if they didn’t want to maintain a relationship with him.
However, terminating someone allegedly for just cause invites a lawsuit. That lawsuit will likely be messy because the employee will claim extraordinary damages, including damages for bad faith due to the flawed, biased investigation that was conducted.
HR took what should have been a straightforward investigation and made a mess of it, turning it into a very expensive event for the corporation.
Lessons Learned from the Case
Recognizing Litigation Risks
The employee, dismissed allegedly for just cause, is now bringing a lawsuit and claiming damages for wrongful dismissal.
He is also going to claim damage to his reputation because the employer spoke with numerous employees and possibly clients, without consulting him on what was being shared. The biggest claim will be for damages for bad faith.
While Canadian case law does not recognize an independent tort for a negligent investigation, where an employer conducts an investigation in bad faith, the consequences can be significant.
Looking at the situation, the bad faith is demonstrated by the fact that the employer made up their mind from the beginning about what they were going to do.
There was a fishing expedition, a lack of due process during the interview with the responding party, and multiple mistakes throughout. The employee and the corporation are now facing potential damages of up to fifty thousand dollars.
There is a precedent for that amount in Canada, where elements of bad faith during an investigation were proven. These mistakes are completely avoidable.
Regardless of where you start or the position you’ve been put in, there’s a process you can follow to achieve a fair result that may not make the employee happy but will stand up to scrutiny and avoid significant liability for the corporation.
When setting up investigations, you want to ensure that you approach it in the right way. Even if you find yourself in a difficult spot where the corporation’s desired outcome is clear, you can still conduct the investigation properly, avoiding extraordinary damages caused by a flawed process.
Start with your independence—examine the allegations and identify who is involved. If senior management is included, or if the allegations involve complex issues like sexual harassment, and you lack the internal skills to properly investigate, it may make sense to bring in external help.
Best Practices as a Workplace Investigator
Importance of Due Process
Due process is key. You need to take the allegations presented to you seriously, without fishing for more wrongdoing. Collect stories from complainants, meet with the responding party, and reconcile any conflicts in evidence through witness interviews.
The process should be simple—nothing more, nothing less—and provide the responding party an opportunity to understand the case against them, respond, and share their version of events.
Maintaining Confidentiality
Confidentiality is crucial throughout the investigation. Minimize gossip and protect the reputations of those involved. In many cases, no misconduct is found, and individuals may return to work.
The potential harm caused by leaks and workplace gossip underscores the importance of confidentiality. You should avoid engaging in a fishing expedition, asking everyone to come forward with whatever allegations they might have against a particular individual.
Ensure that the investigation is thorough.
Ensuring Fair and Balanced Investigations
In this case, the employer focused on the allegations against Frank but ignored the conduct of the senior manager at the party, where he berated Frank in front of other employees and clients. It’s important to be fair in your approach.
The event was witnessed by dozens of individuals, including other managers. Even if there is no formal complaint, from an HR perspective, when there is an incident of harassing conduct and senior management is aware, it triggers obligations under the occupational health and safety act to investigate the event.
Your obligation is to look into these incidents, regardless of whether a formal complaint was filed.
HR Investigations Reporting
When it comes to reporting, ensure that you’ve reached a conclusion on all the allegations and communicate that to the involved parties.
In this case, the company decided to indicate that two of the allegations were founded, using them to assert just cause for termination. However, the corporation ignored the conduct of the senior manager from New York at the holiday party.
Additionally, the senior manager made allegations during the investigation, claiming that Frank had made inappropriate comments about or described inappropriate events involving his wife, which made him uncomfortable.
These allegations were unfounded, leaving open the possibility that the senior manager lied about the event.
On one hand, Frank lost his job because of a couple of interactions at the holiday party, but on the other hand, the senior manager, who publicly berated an employee, lied in the context of the workplace investigation, and remains employed.
This unequal treatment and inconsistent application of company policies will likely lead to additional damages for the corporation.
So sometimes… from the beginning, it looks like it’s easy. Here we’re going to do this investigation, get these allegations, and have this great case for just cause.
We’ll be able to package this up really neatly and bring everything to a close. But as you can see, it doesn’t go that way.
When you don’t follow the appropriate process, when you don’t have a framework that will stand up to scrutiny, and when you’re making it up on the fly, you can get into a whole lot of trouble. This can cause the organization a lot of liability in the process.
So, I hope this case study has been enlightening for you, just to see how easily an investigation can go off the rails. Hopefully, you now have a better appreciation of what you need to do to keep things on track.