A workplace harassment investigator does not make decisions about personnel actions and should not offer any recommendations. Here’s why we hold this position.
The investigator performs many tasks but does not decide. They interview the parties and witnesses and may be called upon to assess credibility. They receive testimony and written evidence, which they review. While the investigator evaluates the evidence, using proper criteria, they establish the facts based on the balance of probabilities. The most reasonably probable scenario, according to all the evidence, represents the facts.[1] Once these facts are established, the investigator analyzes whether they violate the respectful workplace policy and reaches a conclusion. In other words, the investigator establishes the facts and analyzes them to reach one or more conclusions. Once this is complete, the investigator submits the report to the employer, who can rely on it to make a decision.
One might think that the employer simply follows the conclusions of the investigation report, meaning the investigator effectively makes the decision. However, this is not the case. First, the report is a tool to help the employer make an informed decision, but it is not the decision itself, nor the sole factor to be considered. The employer will also consider the respondent’s disciplinary record, and any other relevant factors deemed necessary in the circumstances. Consequently, decisions regarding whether the respondent will receive a written warning, suspension, demotion, coaching, or dismissal, for example, are entirely up to the employer, with no role for the investigator.
Second, the employer is not bound by the investigator’s report. While the report is undoubtedly an important factor in the employer’s decision-making process, the employer cannot rely on it blindly. For example, if the investigation report shows irregularities, procedural errors, or contradictions in the determination of facts, the employer cannot rely on it. Any decision based on such a report could be deemed unreasonable.[2] In other words, the employer must exercise due diligence throughout the decision-making process and cannot abdicate responsibility for fact-finding and analysis simply because they have engaged a neutral third party. Even though the employer has delegated this task to an external investigator, they must carefully review the report to base their decision. If necessary, they can ask the investigator questions about the report, but if they need advice on the decision to be made, they should seek guidance from HR or a lawyer.
Similarly, the investigator should refrain from making recommendations regarding personnel actions, as they could influence or guide the decision-making process. Without the authority to make a decision, it is difficult to justify that the investigator has the power to guide it. Remember that the investigator is a contractor engaged by the employer to perform a specific task. They have no authority to influence an organization’s decision or place themselves in a position of hierarchy that suggests they have such power. This distinction can sometimes be blurred because investigators are often consultants whose services may be retained to help an employer on HR matters. However, when the consultant acts as an investigator, they should avoid wearing two hats.
Furthermore, although the investigator gathers valuable information about the situation, they do not possess all the information necessary to make recommendations affecting an employee’s career. This is different from a workplace assessment. In a workplace assessment, the consultant may issue recommendations because they have been mandated to do so, possess a broader perspective (having spoken to most employees), and the recommendations aim to improve organizational culture and structure. In other words, the conceptual framework, nature, role, and scope of an assessment are entirely different from those of an investigation, making recommendations more appropriate in that context.
Additionally, an investigator who makes decisions or issues recommendations regarding the decision jeopardizes their impartiality. Even if they later claim to be acting as a neutral party, it could be argued that they picked sides by trying to influence how the respondent was treated.
It is true that the investigator must exercise discretion regarding procedural matters. For example, they will decide on the content of the questions to ask the parties and witnesses or the order in which they will be interviewed.[3] While these “decisions” are indeed discretionary, they differ from the employer’s decision in that they are procedural in nature.
Why external investigators are useful
This does not mean that external investigators are not useful. Quite the contrary. In many cases, an external investigator is the only means by which the employer can ensure an impartial investigation, freeing themselves from a time-consuming task while providing expertise in procedure and analysis. By hiring an external investigator, the employer ensures that the investigation’s conclusions are based on an impartial assessment of the facts, free from internal influences or preconceived notions about the parties involved.
An external investigator also brings valuable expertise that can be crucial in handling complex or sensitive situations. This helps ensure that all parties are treated fairly and in accordance with the principles applicable to workplace harassment investigations.
While the investigator does not make decisions or provide recommendations, they may share observations with the employer. In some cases, the investigator may have witnessed or been informed of procedural irregularities that do not align with best practices. As part of the information-sharing process, and to help the employer avoid similar situations in the future, sharing these observations is appropriate.
[1] Faryna v. Chorny, 1951 CanLII 252.
[2] Kenney v. Thames Valley District School Board, 2023 HRTO 1795.
[3] Andruszkiewicz v Canada (Attorney General), 2023 FC 528.
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Please note the information provided in this blog post is for general informational purposes only and every situation should be evaluated on a case-by-case basis.