CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
There are also additional confidentiality requirements for employers imposed by applicable statutes that provide for confidentiality obligations towards those involved in an incident of workplace violence or har - assment. 2.4 Preliminary Investigation and Scope- Setting For federally regulated employers, a preliminary inves - tigation is typically done pursuant to the WHVP dur - ing the “negotiated resolution” phase. Employers are required to make every reasonable effort to resolve the occurrence no later than 45 days after notice of the occurrence. The negotiated resolution phase also functions as a preliminary screening mechanism, where the principal party and the employer review the notice describing the incident and may jointly determine that the notice does not describe an action, course of conduct or comment that constitutes har - assment and violence. In some cases, where there is no legal obligation or statutory requirement to conduct an investigation, an employer may wish to do a preliminary investigation or screen complaints before commencing a full internal investigation. Ultimately, HR investigations must meet the specific statutory requirements imposed by appli - cable legislation and be compliant with any applicable policies. In some cases, a preliminary investigation may be sufficient to fulfill both the legal and policy requirements; however, where the subject matter of the investigation is serious in nature, complex or likely to be contested, a full HR internal investigation is likely to be more appropriate.
that govern investigation (and in some cases, appli - cable legislation) require investigators to interview the complainant and respondent at the very least. Whether an individual should be interviewed or not is often a judgement call to be made by the workplace investigator, keeping in mind that they want to con - duct a neutral, fair and thorough investigation. 3.2 Participation Ideally, an organisation’s policy will set out that employees are expected to participate in any work - place investigation, however, it can be tricky when an individual refuses to participate. It can be helpful to explain to someone who is reluctant or refusing to participate why their participation is important and, perhaps, the impact the investigation may have on the workplace or employees (both current and future employees). If, however, someone refuses to partici - pate, and particularly if it is the respondent, a work - place investigator is well advised to inform the person that they will continue with the workplace investiga - tion and will have to make findings without the benefit of their information. 3.3 Format Workplace investigation interviews can be done in person, by videoconference, by telephone or written questions. That said, in person or videoconference interviews are often preferable as it can sometimes be easier to build trust with an interviewee as well as assess an individual’s credibility when the interview is done in person or by videoconference. 3.4 Interviewers There is no rule per se on the number of workplace investigators (ie, interviewers) that should be assigned to any workplace investigation. Who conducts the investigation (and how many investigators or inter - viewers there are) is generally determined by the work - place policy, the collective agreement (if applicable) or the circumstances which lead to the investigation. For example, you may want two investigators if the number of potential witnesses is likely to be “high”. It is relatively unusual for more than two investigators to be assigned.
3. Interviews and Fact-Finding 3.1 Interviewees
While there is no “one-size-fits-all” approach to work - place investigations and who to interview, a workplace investigator is well advised to interview individuals with relevant information, which often includes the complainant (the person who has raised the concern or the subject of the misconduct), the respondent(s) (the person(s) alleged to have engaged in the alleged behaviour) and witnesses (individuals who have rel - evant information). Principles of procedural fairness
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