Who should lead a Workplace investigation? Health and safety, human resources or a third party?
Rob Dombowsky, Industry Advisor, Human Resources & Labour
Workplace investigations can be highly stressful and carry a high degree of risk for an Organization if an investigation goes wrong. Employers need to be aware of those risks and plan any investigation accordingly. A critical decision that will help mitigate risk, is deciding who should conduct the investigation. Depending on the severity and/or seriousness of the incident an investigator could be Health & Safety, Human Resources, or a third party.
Terminology
The term “incident” can be defined as an occurrence, condition, or situation arising in the course of work that resulted in or could have resulted in both physical and psychological injuries, illnesses, damage to health, or fatalities.[1]
The term investigation can be defined as the gathering and analysis of information, the drawing of conclusions, including the determination of causes, and, when appropriate, the making of recommendations.[2]
At the end of the day, all incidents need to be investigated, to some degree. The effort made by the employer will depend on the seriousness and or severity of the incident. The terms workplace investigation, incident investigation, safety investigation are often used by employers thinking they are different based on the context of the incident. In reality, the terms are all the same in the view of OHS. For our purposes here, we will simply use the term “Investigation”.
Why Investigate?
Investigations should be conducted to determine the root cause of incidents and to prevent similar incidents from occurring in the future as well as to meet any legal requirements.[3] Aside from prevention, a proper investigation mitigates risk for companies. Failing to investigate or doing so poorly exposes the organization to fines, penalties, reputational damage, decreased morale and productivity, as well as increased turnover, and recruiting costs. Conducting an investigation early, correctly, and utilizing the findings properly is key.
Who Should Conduct an Investigation?
Investigations are conducted for many, and diverse reasons. They can also be conducted by anyone in the organization, a combination of people in the organization or a third party. Regardless, the investigator needs to be qualified and competent. An informal survey of ten Health & Safety and Human Resources professionals all agreed that competency and qualification are the most important factors in choosing an investigator. In addition, it’s critical to note that competency can only be developed through experience. They also all agreed that job titles or seniority alone are not good indicators of competency when it comes to investigations.
The Options
Choosing an investigator depends on the specifics of the incident under investigation and the options available to the organization. Employers should consider their options and consult legal counsel when warranted.
Health & Safety
Employees with Health & Safety responsibilities are often tasked with day-to-day investigations in the workplace. These tend to be your typical incident investigations, which provide great experience for people to hone their investigation skills. As they build their competencies, they are better equipped to conduct investigations into more severe incidents such as repetitive strain, back/shoulder injuries to amputations, broken bones, or equipment failure incidents.
In most cases, there will be no issues with the practice of Health & Safety investigating, assuming the employer has properly trained those workers in the investigation process. Examples of investigations that could be in this domain are slips, trips, and falls, or other workplace injuries, equipment failures, health hazards such as noise and air quality etc.
These are areas that people in Health & Safety would normally take the lead in as they are operational in nature. In addition, most of these types of investigations would only require knowledge of OHS and WCB legislation as well as job-specific knowledge.
Human Resources
What if there was a case of sexual harassment; accusations of discrimination; or a negative finding that could result in the potential termination of employment? Would you entrust that investigation to your Health & Safety people? With more serious incidents, such as sexual harassment, discrimination, workplace bullying, several additional pieces of legislation may come into play such as Canada Labor Code, Alberta Employment Standards, Contract Law, Human Rights, PIPA, PIPEDA, and the Criminal Code as well as Labor Relations and Collective Agreements could be a factor in any investigation.
In addition, Human Resources work with people daily and may have more experience in situations that require being sensitive to emotions and feelings as well as having a high degree of tact and emotional intelligence.[4] Senior human resources people will have more experience in dealing with upset or emotional employees.
In summary, human resources bring specialized knowledge and experience to the investigation and are better equipped to deal with certain situations. At the same time, they may not have knowledge of OHS, WCB, or the specific job tasks, processes, and equipment involved in the incident. As a result, they may not be ideal for an investigation of an incident or near miss on the shop floor or on the road, resulting from poor load securement.
Third Parties
As an employer, you may not have the right person, with the required competencies and qualifications to conduct a workplace investigation in your organization. This is where you would need to consider other options. Are HR and HS able to team together to conduct an investigation? If not, employers would need to consider engaging a third-party investigator.
Again, competency and qualifications are key in choosing an investigator. These investigators could come from a range of backgrounds such as Health & Safety, human resources, law enforcement, or a law firm.
Other parties in the organization
It’s recommended that other people in the organization do not get involved in the investigation for a few reasons. First, there is the questions of Competence and Qualification for other people. Second, if they do not work in Health & Safety or Human Resources, their knowledge of the applicable legislation and company policies may be limited. Third, there is the view of impartiality and objectivity. If it were tested in the courts, would that investigator stand the scrutiny? In short, other people could conduct the investigation, but they would be the least ideal candidates.
Takeaways
The key things for decision-makers to keep in mind are as follows:
When a serious incident happens consult your lawyers early. In addition, consider if they are the best people to conduct an investigation or can advise your investigator.
Find a qualified and competent investigator today and keep them on speed dial. You may not have time to conduct a thorough search when an incident happens. AMTA’s WSS team can provide investigations services upon request.
Ensure you have trained your employees to conduct routine, operational incident investigations. Experience builds competency!
Investigations cost money no matter who is investigating. Not investigating properly can cost a lot more. Invest in your program today.
Our Services
AMTA can provide members with one-on-one guidance on the information provided in this article. If you have any questions, please contact AMTA and our experienced staff will be happy to help. For your Safety, Compliance, and Human Resources questions, please email Workplace Support Services at wss@amta.ca. For more information regarding workplace investigations or to engage AMTA for an investigation, please contact Rob Dombowsky at AMTA (403) 214-3439.
Case Study
A City of Calgary Tractor Truck driver complained to her supervisor about the workload being unreasonable. In return, the supervisors and coworkers began a campaign of discrimination and workplace bullying, and harassment. They spread rumors about affairs, mocked her appearance, and ostracized her over a request for a women’s washroom. As a result, she took disability leave so she could recover from her ordeal.
In April 2018, nearly five years after her troubles began, an Alberta grievance arbitration board awarded her $75,000 in general damages, plus lost wages for the entire time she was on disability.[5] This ruling was the result of the City’s failure to investigate this case correctly multiple times.
First, the supervisors did not understand their role and did not investigate any initial complaints. The supervisor even joined in the abuse.
In the formal investigation, the city assigned the investigation to a Human Resources worker, who was not qualified or competent in the investigation process. That investigator failed to interview any witnesses.
In the final investigation, the city assigned another “Employee” to investigate. This time not from the HR department. However, for a third-time competency was the issue. That employee also failed to conduct a suitable investigation, by not collecting or reviewing known audio recordings of the harassment.
At the end of the day, this is an ideal example of where a third party could have been engaged early on in the process. Had that happened, the case may have been resolved without going to the arbitration board. In addition, conducting a proper investigation early on would have limited the n
[1] Canadian Center for Occupational Health and Safety – OHS Fact Sheets – Incident Investigation (29 November 2021) https://www.ccohs.ca/oshanswers/hsprograms/investig.html
[2] Skybrary – Safety Investigation (https://skybrary.aero/articles/safety-occurrence-investigation
[3] Canadian Center for Occupational Health and Safety – OHS Fact Sheets – Incident Investigation (29 November 2021) https://www.ccohs.ca/oshanswers/hsprograms/investig.html
[4] Chris Broughton, CHPR SPHRi, Personal Communication (23 November 2021)
[5] Lessons from a workplace harassment investigation gone, Benefits Canada (7 September 2018) https://www.benefitscanada.com/news/bencan/lessons-from-a-workplace-harassment-investigation-gone-wrong/