Published on: July 26, 2022
The biggest worry for many workplace investigators is having an investigation challenged through a court process, at a tribunal, or through an arbitration. We all know that workplace investigations can be difficult and complex, and having your process and report analyzed and dissected can feel like a nightmare. Ideally, you will have ensured that your process was fair and thorough, and your report was detailed and reasonably connected to the evidence. Even so, any workplace investigator called to defend their investigation report and conclusions will experience moments of anxiety and doubt as they look back through their notes from several years ago, and face cross-examination. Some basic tips and preparation can make this process less stressful and help a workplace investigator be seen as credible when providing their evidence.
1. Know your case
It is likely that by the time a case makes it before a tribunal, court or arbitrator, several years will have passed since you conducted the investigation. You may have completed dozens of other investigations in the intervening time period, and many of the details will have been forgotten. In order to appear competent and professional when giving your testimony, you should thoroughly refresh your memory by reviewing your notes, the report, and any other related documents prior to the hearing or arbitration.
2. Admit your mistakes
Any experienced workplace investigator will readily admit that there is no such thing as a perfect investigation. If you are being questioned about a workplace investigation, it is likely you made mistakes during the investigation process, since this happens to varying degrees in every investigation. The worst thing you can do is brush off questions about those mistakes or make excuses; this will impact the decision-maker’s assessment of your credibility and could also have a negative impact on your reputation as an investigator. If you have done your homework and thoroughly reviewed your case file, you probably have already identified any mistakes you have made in advance, and will be prepared for questions about them. If you do not believe that those mistakes impacted your findings, be prepared to explain why.
3. Remember your role
Although you were retained by a client to conduct a workplace investigation, your role when that investigation is being challenged is not to defend the client, but to tell the truth. While you may be working with legal counsel for the client to prepare for the trial or hearing, this does not mean that your role and the role of legal counsel are the same. Appearing unfairly and overly partial to the position put forward by the client will not help anyone, as it will cause the decision maker to put less weight on the evidence you offer. When appearing as a witness, being open, honest and candid is always the best strategy.
To learn more about how to prepare for a hearing, adjudication or trial, consider attending our An Investigator’s Guide to Preparing for a Hearing, Adjudication or Trial online course.