Are you Under a Workplace Investigation? Tips from an Employment Lawyer

If you are under workplace investigation, be aware that how you handle yourself in that investigation can have significant consequences for your job and your career.  These tips are to provide you with some helpful dos and don’ts in handling a workplace investigation.

Get Legal Advice.  If you have an opportunity to obtain legal advice, you should speak with an employment lawyer at the outset and ideally prior to the investigation meeting.  In some cases, you may wish to have a lawyer present during the investigation, however the employer is not obligated to allow you to bring a lawyer. If you are a unionized employee, you should speak with your union, and generally you should have the right to have a union representative attend with you.   If the allegations against you relate to criminal conduct, like theft, fraud, assault, sexual assault, you should also obtain advice from a criminal lawyer at the earliest opportunity.

Cooperate.  You should generally cooperate and answer relevant questions being asked of you.  Your behaviour is being judged.  While this is not a likeability contest, you generally want to make a good impression on the investigator.  A witness who is combative, argumentative, or who refuses to answer relevant questions may be viewed as hiding something, or worse, trying to impede an investigation.  Further, your behaviour, including body language, can be viewed as clues about whether a witness is being truthful.

Answer Truthfully.  Employees have a duty to their employer to conduct themselves honestly during the investigation. Providing answers that you know to be false or misleading may be grounds to dismiss you for cause.  Further, dishonest or misleading answers can cause an investigator to favour another witness’s evidence over yours.

Consider Material Disclosures.  I have read a number of investigation reports that have made negative credibility conclusions about a witness because it was believed that the witness was withholding material background information. By material I mean information that is relevant and/or important to a full and fair investigation.  Your omission may be an oversight, but consider whether the additional information would be something an investigator would have an interest in knowing.  Even if you think that information may hurt you, if may be better to explain it than to withhold it entirely.

Consistency in Your Evidence.  I have seen instances in which a witness changed their story mid-investigation.  This has generally not worked out well.  The reasons for the change may be perfectly innocent, for instance, a witness was embarrassed to provide the full story to a stranger.  However, someone who is telling the truth will only have one version of the truth. Conversely, someone whose story keeps changing will generally be perceived as being dishonest or unreliable in their evidence.   If you are holding back, you may later regret it.

Ensure You Understand the Questions.  When answering questions, take the time to pause and consider the question being asked of you.   Also ensure that you ask the investigator to clarify their question if you do not fully understand the question being asked of you.  Providing an answer to a question that you misunderstood, may be misperceived as being evasive, untruthful, and can also lead to inconsistencies in your evidence.

Do Not Speak to Your Co-Workers About the Investigation.  You will likely be warned not to speak to others about the investigation.  There is good reason for this.  Speaking with others may taint or influence a witness’ evidence or recollection of things.  Even if not specifically warned, you should refrain from speaking with other witnesses about the investigation, as this may be perceived as an attempt to collude with, or influence a witness into providing favourable evidence.

Consider Whether There are Corroborating Witnesses and Evidence. You should consider providing the investigator with any relevant evidence or names of witnesses who may corroborate your story.  Even if not specifically asked, you should bring to their attention any relevant emails, text messages, photos or other information that may corroborate your evidence.

Take Your Own Notes.  We all hope that an investigator will be neutral, fair and conduct the investigation competently.  However, investigators do make mistakes, and in some cases, the investigation may be flawed, biased or negligent.  You should therefore take your own notes during and immediately after the investigation meeting regarding your own observations of the meeting, what was asked and answers provided, or any concerns you have about the investigator’s conduct.   In some cases, the investigator may record your answers and ask you to review and sign off on the accuracy of the written statements of your evidence.  If so, be sure to review it thoroughly and make any necessary corrections or additions before you sign off.

Consider Whether You Have Anything to Add or Correct.  When called into an investigation meeting, you may feel caught off guard, you may even be in a state of extreme anxiety or disbelief, which can impair your ability to answer questions.  You may realize after the meeting that you have additional helpful information to provide that you forgot about, or that you need to correct some of your answers.  Once you have a chance to do so, you should correct or complete your evidence.  I have seen situations in which a witness failed to follow up with relevant information  and the investigation concluded unfavourably and they were dismissed.  By then, it was too little too late.  While it may not look good to change your answers,  it may be better to explain it, than to leave the investigator with incomplete or incorrect information.