Scoping and planning the investigation

First Stage - Scoping

What is the panel investigating?

As the panel starts its investigation, the panel will be provided with terms of reference which will set out the scope of the investigation. It is crucial that the panel is clear about the parameters of the investigation. If the terms require further clarification, the panel must seek such clarification from the responsible official.

The panel is not to decide whether there has been prohibited conduct (i.e. whether the facts as found amount to harassment). However, the panel must gather the facts necessary to help the responsible official in making that decision. This is an important distinction.

Example:

The panel finds that Yoshio did not give Juan the opportunity to be Officer-in-charge whilst one of their colleagues was on maternity leave. Yoshio provided this opportunity to Riku and Hinata (both share Yoshio’s nationality whereas Juan is from a different country). When asked, Yoshio could not explain why he did not provide Juan with the same opportunity as Riku and Hinata. The panel concludes that Yoshio did not offer Juan the opportunity to be OiC on the grounds of nationality. It will be for others to decide whether this actually amounted to discrimination.

The first stage of the panel’s investigation should, therefore, be defining the factual allegations the panel is investigating by relying on the terms of reference.

Detective regardant à travers une loupe

Widening scope of investigation

It may happen that as the panel obtains evidence, the panel finds evidence of prohibited conduct or other misconduct which does not form part of the terms of reference (e.g. the panel is investigating harassment of a staff member and the panel is made aware of allegations that do not relate to the terms of reference). If so, the panel must not investigate this further possible misconduct but refer it to the responsible official. The responsible official may then extend the panel’s terms of reference and if so, the panel can then investigate it. The responsible official may also refer the possible misconduct to OIOS.

What if the complainant withdraws the complaint?

Affected individuals can withdraw complaints at any time, but it does not mean the investigation is at an end. A report should be submitted based on the evidence already obtained by the panel. Affected individuals may also decide to move to an informal resolution, which is permissible and will impact the investigation, including whether it should continue. Any decision to place an investigation on hold pending the outcome of an informal resolution should be discussed with the responsible official, and if appropriate, in consultation with OHR.


Second Stage

What evidence does the committee need?

Once the committee has clearly defined the factual allegations under investigation, it can begin planning the inquiry. This includes identifying the types of evidence to be collected and determining the steps required to obtain that evidence.

All relevant lines of inquiry must be pursued, including the exploration of potential exculpatory evidence. The goal is to gather the best possible evidence. At a minimum, the complainant, the subject, and any relevant witnesses should be interviewed, ensuring that each has a fair opportunity to present their version of events.

The committee must ensure that it collects not only evidence supporting the complaint but also evidence that may exonerate the subject, such as witnesses providing information in their defense.

Mitigating evidence, such as an expression of regret or personal circumstances, is not relevant to determining whether sufficient evidence exists to substantiate the factual findings. However, the committee should still record any potential mitigating factors and reflect them in the final report, so that management can take them into account when considering disciplinary action.

There are different types of evidence to consider:

  • Witnesses – i.e., interviews with individuals who have relevant knowledge of the allegation.
  • Documents – records, files, archives, printouts, photographs.
  • Digital documents – hard drives, USB keys, phone records, email archives.
  • Physical evidence – clothing, objects.

Witnesses

In most prohibited conduct investigations, witness interviews play a key role and are the main source of evidence. The panel will need to think carefully and keep reviewing throughout the investigation who has relevant evidence and therefore should be interviewed. Witnesses may be:

  • Individuals who may have observed the reported conduct, or
  • Individuals who may have knowledge of circumstances related to the reported conduct,

for example, a witness who did not observe the prohibited conduct but was later told about it.
The panel should interview witnesses who have material and relevant evidence to provide. It may be helpful to identify how the person is expected to help the panel’s fact-finding. For instance, if an affected individual says that soon after an incident they went and told a colleague about it, the panel would need to speak with the colleague about this conversation.

Example:
AllegationsEvidenceProgress / Notes
It was reported that Samir shout at Aisha that she was “useless and would do better to stay at home than bother coming into work” on 30 January 2018
  • Samir interview
  • Aisha interview
  • Rhonda interview (alleged to have been present)
  • Text messages Aisha sent that afternoon after alleged incident
  • Samir interview conducted on xx
  • Aisha interview planned for xxx
  • Rhonda not a staff member and will not cooperate
  • Text message dated xxx obtained from Aisha

It may be necessary to re-interview witnesses (particularly the alleged offender) to clarify information previously given or to give them the opportunity to respond to particular elements of the information gathered. This is particularly important with regards to the alleged offender as, prior to concluding the investigation, the panel should ensure that the alleged offender is given an opportunity to comment on the evidence given by others which implicate the alleged offender. Remember, however, that the panel is bound by its terms of reference and must not investigate more widely.