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Promoting Participation in Investigations

Posted - March 24, 2024

Whether you are conducting a workplace or professional regulatory investigation, a common hurdle that investigators encounter is the refusal or inability of parties and witnesses to participate in the investigation process. Managing these challenges requires a strategic, ethical, and legally sound approach to ensure the investigation’s integrity and fairness.

Firstly, it’s crucial to understand the reasons behind a party’s or witness’s reluctance or inability to participate. The reasons can range from fear of retaliation, lack of trust in the investigation process, personal or health issues, or a trauma response, to legal counsel advising against participation. Addressing these concerns at the outset can sometimes alleviate fears and encourage cooperation.

When faced with non-cooperative parties, clear communication becomes paramount. Investigators should outline the importance of the investigation, the potential consequences of non-participation, and the measures in place to protect all involved parties from reprisals and breaches of confidentiality. Reminding them they can obtain independent advice from their union (where applicable), legal counsel, or support persons, can also assist them in making a more informed decision on their participation. This also help in building trust between the investigator and the participant.

Legal and regulatory frameworks often provide investigators with certain powers, such as the ability to compel statements or production of evidence. However, these powers must be used judiciously. Overreliance on such powers can erode trust and may lead to legal challenges. This is not to suggest you don’t use powers when applicable, but rather to recognize they won’t always help. The power to compel might get the person to the table but will not necessarily lead to a fulsome statement.

In cases where participation is not forthcoming, investigators should seek alternative sources of information. This might include reviewing electronic communications, public records, or obtaining testimony from other witnesses. Creativity in gathering evidence can sometimes offset the lack of direct testimony.

Documentation is another critical aspect of managing non-cooperation. Investigators should meticulously record all attempts to engage with the parties involved and any responses or lack thereof. This documentation can be vital in demonstrating the thoroughness and fairness of the investigation process, especially if the investigation’s findings are challenged.

Adapting the investigation plan to the realities of the situation is also necessary. This might mean extending timelines, revisiting the scope of the investigation, or adjusting the methods of evidence collection. Flexibility, combined with a clear understanding of the investigation’s objectives, ensures that the process remains robust despite obstacles.

Finally, investigators should be prepared to make findings based on the available evidence, even if it is less comprehensive than desired. While this is not ideal, clarity about the evidentiary limitations and the rationale for the conclusions reached is essential for the integrity of the investigation’s outcomes.

Managing the challenges associated with non-participating parties and witnesses requires a multifaceted approach that balances the need for thorough investigation with respect for individual rights and the limitations of the investigatory powers available. By employing clear communication, ethical practices, and creative problem-solving, investigators can navigate these challenges effectively.