The Importance of an “Open Mind” – Fairness in Investigations

In a recent matter, Bairaj Shoan and Attorney General of Canada (2016 FC 1003), a federal court judge rejected a workplace harassment investigation due to an improper investigation into alleged workplace harassment. In the decision, The Honourable Mr. Justice Zinn found that due to a lack of procedural fairness and natural justice within the investigation process, it could not be considered as evidence against the alleged harasser.

The investigation in this case was examining allegations that a Commissioner of the Canadian Radio-Television and Telecommunications Commission (CRTC) acted in a harassing manner through e-mail exchanges with a colleague. The investigation outcome was unfavourable to the Commissioner and based on the findings of the investigation the Commissioner was terminated.

The court focused on the “open mind” test stating that the investigation went outside of the scope of the original complaint and the individual investigating the allegations “failed to critically and impartially analyze some, if not most, of the impugned emails, with the result that her tainted analysis supports the finding that she was close-minded.”

All investigators, regardless of the type of investigation they are conducting can learn from this decision. The importance of procedural fairness cannot be understated and investigators must abide by the following:

• Remain objective and neutral in their investigations generally remembering their job is to search for the truth, not a particular outcome.
• Remember they are no one’s advocate and must make that clear to the parties involved in the matters they investigate.
• Make certain they know the scope of the investigation and stay within that scope.
• Be open minded and avoid making conclusions until all the facts have been gathered, as premature conclusions can affect judgment.
• Conduct interviews in a neutral, non-leading manner, staying within the mandate of the investigation
• Refrain from unnecessary commentary with complainants, respondents, and witnesses during interviews
• Ensure reports are written in a neutral language and that they reflect all the relevant information available, regardless of whether that information supports or refutes a certain position.
• Do not destroy interview notes or any documentation related to the investigation until the appropriate time has passed and in compliance with privacy legislation

Organizations undertaking investigations must ensure:

• Anyone involved in the case is free from bias or the perception of bias. This can be an issue when the investigator is internal to the organization, but as can be seen in this decision it can happen with external investigators too.
• Ensure the investigator is qualified to conduct the investigation. We see many error laden investigations because the person doing it lacks an understanding of process, or the skills to investigate competently. 

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Benard + Associates and Nuance Education + Training can assist organizations and individuals with investigative solutions, conflict resolution, and education. Visit us at www.benardinc.com or www.nuance-edu.com