Speaker 1: In this episode, we're going to talk about conducting investigations. This can be a tricky subject and scary for some, so let us give you some insight on how to do that better. That's coming up right now. Hi there, I'm Andrea Adams and the host of HR Shop Talk. On this show, you get expert insight into all things HR. I encourage you to subscribe to the show by clicking on the button at the bottom of the screen to continue learning from my smart and experienced guests. Today my guest is Alexandra Montanaro. Alex is a labor relations specialist with over 12 years of industry experience, primarily in the public sector. She has participated in 19 rounds of collective bargaining and 14 as the chief spokesperson. She also has a degree in labor studies. Hi, Alex.

Speaker 2: Hi, Andrea.

Speaker 1: How's it going?

Speaker 2: Not bad.

Speaker 1: You? Good. Good. This is going to be a good one and helpful, I think. Let's just start with the first question and a basic question. What is an employee investigation and what are the typical steps from learning of someone's potential misdeed to making a decision and delivering the discipline?

Speaker 3: An investigation is formalized truth-seeking, I mean, plainly. Once you become aware of an issue that requires an investigation, there are typically four steps. First, it's to assess the scope of the investigation, meaning who has firsthand knowledge of the issue at hand, who witnessed it, who is party to the action or the alleged infraction, and to review any relevant policies or procedures, legislation, collective agreement, language, to sort of refresh yourself on any parameters you need to keep in mind while conducting the investigation. The second step is to organize your questions and determine the order you're going to interview people. The third is conducting the interviews, keeping in mind any relevant policy or collective agreement provisions you need to know. If you're dealing with a unionized environment, which I realize you're not always, but if you are, you need to keep in mind union representation rights when it comes to investigations. You also want to think about the fact that sometimes you have to go back and re-interview people to clarify conflicting information, so it's not always a one-and-done scenario. The fourth is collecting all that information that you've gathered, any data, all the relevant commentary, evidence, essentially, and making a determination about what happened and whether the employee or employees in question were culpable or at fault, and if so, what actions you're going to take to address the culpability.

Speaker 1: Okay, so can you a little bit just talk about timelines? I know in a unionized environment, you may have very strict timelines, but what about in a non-unionized environment?

Speaker 3: I don't think there are, I mean, short of negotiated timelines, which may exist in some collective agreements, I would suggest that there typically aren't prescribed timelines that people need to follow. I think it's as fast as reasonably possible, making sure you're thorough along the way. The reason timeliness is important is because evidence changes, memories shift, and if you're going to correct a behavior, doing it within a short period of time is far more effective than waiting six months and saying you did something wrong six months ago. That's really not an effective correction technique, so that's kind of why the timeliness is important.

Speaker 1: Okay, and what about the standard of culpability?

Speaker 3: So in an employment context, it's not a courtroom drama, right? It's not beyond a reasonable doubt standard. We're talking about a standard called the balance of probabilities, and the really technical description of the balance of probabilities is based on the evidence you have, is it more likely than not to have occurred? And so that seems willy-nilly, but it's not really when you look at the facts at hand, if you're not sure, then you haven't met that standard. If the evidence supports that conclusion reasonably, then you've met the standard and you move forward.

Speaker 1: Yeah, I feel like if only we were always so simple, right? Okay, knowing that many organizations turn their investigations over to HR almost entirely maybe because they're afraid of them, what do you think the role of HR should be in investigations and why?

Speaker 3: Like most HR professionals, I've seen investigations handled many different ways over the years. My opinion is based on those experiences. So I feel that because investigations are so nuanced and they require a lot of experience to get right, it's more of an art than a science, right? And the more you conduct them, the better you are at conducting them and avoiding some of those classic pitfalls that maybe a supervisor wouldn't know to avoid. It's my belief that having an HR-led investigation provides kind of the most defensible outcome at the end. That being said, I don't think that it should be exclusively handled by HR. I really believe that it should be led by HR with a partnership of your supervisor because there's lots of operational information that often contributes to the issue at hand that HR may not have the experience to understand the nuances involved. And I think that is equally important when you're investigating operational issues in particular that there's information being contributed by the area.

Speaker 1: So how much of investigation process is driven by case law versus any existing collective agreements versus internal practice?

Speaker 3: I would say that investigation protocol or best practice, I should say. There you go. Thank you. Yeah. Yeah. Investigation best practice is primarily driven through case law or by case law. The big what you can and can't do is driven by case law. As far as internal protocols, I'd say very few organizations I've worked with or engaged with over the years have policies that outline investigation procedures, but you'll see guidelines or best practice documents sort of floating through HR departments kind of in any organization you go. And usually those are a collection of relevant case law as like parameters from case law or limitations and sort of individual best practice experiences that people have collected and shared. So I'd say collective agreements by and large don't often refer too much or limit you on investigations, though I have seen some. Where collective agreements come in for investigations is where you're going to see union representation rights laid out. And so generally speaking in a unionized environment, employees under investigation or who are subject to the investigation are entitled to union representation for their interviews and the entire process. That's kind of a general standard that everybody has a right to. However, some collective agreements have negotiated rights that go beyond that. And so witnesses may have rights to union representation or there could be prescribed timelines to complete an investigation that have been bargained. And so in those cases, you definitely need to know the rules you're working within before you start.

Speaker 1: If you found this interesting, subscribe to see all the episodes and comment. Have you done investigations and have you learned about some things that work better than others and that you've continued doing on other investigations? Let us know in the comments section below. And back to you, Alex. So comparing unionized investigations, well, investigations in a unionized environment to those in a non-unionized environment, how do they compare or contrast?

Speaker 3: I mean, from a technical standpoint, if done correctly, the only difference should be that unionized employees are afforded union representation through non-union employees are not legally entitled to representation. How do they compare and contrast? Well, that's more about organizationally, whether the standards are the same or not. I would suggest that in unionized environments, you have a check and balance built in through the union. So in my experience, the process is often more refined and more consistently applied to non-union.

Speaker 1: And so thinking back to all of your experience, what are some common pitfalls in the investigation process? I bet there are a few.

Speaker 3: Yes, I would say the number one pitfall is bias in the investigation process or an investigation geared towards supporting a predetermined outcome. I mean, we're all humans conducting these investigations, right? And which means we come in with our own biases based on our experiences. And so it's essential that the investigators be open to letting the information tell the story. I've certainly been guilty of assuming an outcome of an investigation before it's been conducted. And I must say that I've been surprised on more than a few occasions, maybe than I care to admit, that I believe the outcome was going to be different than what it ended up being. And so I think you have to, you can never really eliminate bias, but you have to be prepared to accept that you have it and be open to the information. And I think that's where having HR partner with a supervisor is helpful because typically HR isn't quite as engaged in the outcome or invested in the employees specifically. So as a result, they tend to be less biased or less invested in a very specific outcome and are more open to that information. So I'd say bias is number one. I'd say the second thing that I've encountered is people being afraid to dig deep enough, right? And so I'm not sure if it's a fear related to not knowing how to ask or what they're not allowed to ask, but in the end, not asking enough probing questions or enough questions to truly get at the situation at hand. And so really when it comes down to it, a superficial investigation is about as good as no investigation at all. So don't be afraid to ask and to really figure out what happened before you make a conclusion.

Speaker 1: Here's an interesting question. You know, I've been doing lots of these episodes on my YouTube channel, and we talk a lot about alternate ways to resolve conflict. So is the investigative process outdated? There's just so much talk about enabling employees to do their best and retention and understanding the employee's perspective. It can be hard to see where investigations and discipline fit.

Speaker 3: Yeah, so I mean, HR professionals are sort of always looking to solve the big questions, right? How do I recruit top talent while keeping in mind diversity and inclusion less, right? Yes. Workforce engaged, how do I prevent the best employees from leaving? And so that those big questions have sort of morphed into assuming that somehow investigations and discipline are directly contributing to us not being able to successfully answer those three big questions. I hear a lot about alternative resolutions. I think my comment towards that is they're all great, but it's not a one size fits all approach. And I don't believe that, you know, a culture audit is not looking to achieve the same thing as an investigation, nor is a mediated dispute resolution between two parties. So I think it's picking the right tool for the right issue at hand or the right experience. And knowing when to apply the right thing is more critically important than assuming that investigations are bad, right? I think ultimately, if you're looking to impose discipline or a penalty, you're required to investigate legally to meet that threshold, to prove that you've done it fairly consistently without bias and done all the right things. So there is a place for investigation and discipline. I think it's more about opening up to alternative disputes and making sure you apply them consistently because applying investigations or overly applying investigations is just as bad as inconsistently applying different dispute resolution for kind of the same thing. And employees are watching us, right? Employees are looking to be treated fairly. And I think it's just about creating a framework that is inclusive of your options and appropriately applied.

Speaker 1: So we're at the end here. A final question. Where can people learn more about conducting investigations? Goodness.

Speaker 3: I'm sure there are various resources available online through HR consulting firms. But honestly, if your organization is looking for sort of an in-service on investigations, my recommendation would be to go to the employment and labor law firm that you use regularly or that you regularly do, come in and do a service. I mean, ultimately, what you really need to know are the specific rules that must be followed and sort of the no-go zones, things you absolutely can't do. The rest is sort of on-the-job learning. It's experiential learning that you get over time and that you get better at with experience.

Speaker 1: All right. Well, thanks, Alex. That was so good. And I learned a lot from that. And you've really thought through a lot of these issues. So you may be interested in an episode on workplace restoration, a link to that's right here. Thanks for watching and see you next time.