Is it time for the implementation of standards, including proper training and oversight, as it pertains to the conduct of “administrative investigations”? It could be argued that administrative investigations are purely “administrative” in nature and as such there is no requirement for an enhanced capability. However, it can also just as easily be argued that these types of investigations can have a very negative impact on the lives of those being investigated, including the potential loss of their livelihood. They also bring with them a large degree of “personal and institutional liability” on the part of those individuals conducting the investigations and the organizations for which they are employed.
Administrative Investigation Discussion
It is important to start this discussion by defining “administrative investigation”. Although there are a variety of different definitions available across the sphere of private and various government (at both the provincial and federal level) organisations they all have common themes. The definition used by the Treasury Board of Canada Secretariat encompasses many of these common themes:
“In the context of labour relations, an administrative investigation refers to an enquiry into or examination of the circumstances surrounding a situation, incident, event, occurrence, issue, matter, complaint, etc. in order to determine all relevant facts and establish a documented basis upon which a decision can be taken.”
A much simpler definition of Administrative Investigations is:
“An administrative investigation…is any investigation that is not a criminal investigation. The line between criminal, administrative and oversight investigation is often blurred.” (Conducting Administrative, Oversight and Ombudsman Investigations, Gareth Jones, Canada Law Books, 2009)
The federal government has a vast suite of policies and directives that in some manner refer to the conduct of “administrative investigations” for various issues or incidents, the most prevalent being:
- Financial Administrative Act
- Policy on Government Security
- Directive on Departmental Security Management
- Directive on Losses of Money or Property
- Public Servants Disclosure Protection Act
As part of these policies and directives, the Treasury Board Secretariat website provides a basic “checklist” for the conduct of administrative investigations; however it does not provide an all-encompassing directive on the conduct of investigations. It is interesting to note that in 2004 a review was conducted as it pertains to “non-compliance” with the Financial Administration Act (Federal Administration Act, Responding to Non-compliance, Treasury Board of Canada Secretariat, 2005 etc.).
This review’s final report highlighted several areas of concern as it pertained to the issue of administrative investigation processes. Many of this report’s findings are as relevant in 2018 as they were in 2004 and include:
- Managers trained in the conduct of investigations or qualified investigators are not always available. This is particularly an issue outside of large urban areas or within smaller operations;
- Staff relations personnel and investigators called upon to perform administrative investigations do not always have sufficient training or uniform guidelines;
- It is not uncommon to have either criminal and administrative investigations occurring simultaneously or one occurring immediately after the other. This leads to confusion about the rights and responsibilities of managers in regard to the administrative investigation;
- Investigations are not always carried out in a timely manner, in part because of the other reasons outlined here;
- Investigators and managers do not always have access to or knowledge of the findings of other government entities examining the same events (internal audits, various ombudsmen, the Auditor General of Canada, security investigations, disclosure officers, nor are all the players equally knowledgeable about each other’s role and methods;
- Perhaps the biggest shortcoming in the area of administrative investigation is the unequal access to investigators trained in the conduct of administrative investigations and knowledgeable about the Public Service. Many departments rely on managers to conduct complex investigations. Others rely on investigators who have been trained as police officers and who are not familiar with the particular nature of administrative investigations.
The conduct of administrative investigations brings with them a high degree of “personal and institutional liability”. As it pertains to institutional liability, it is incumbent upon the Manager or Director to ensure that the individual they are appointing to conduct an investigation has all of the training and experience required to conduct it appropriately. It is also clearly the responsibility of the individual to ensure that they are properly prepared to carry out a lawful and professional investigation. The importance of conducting proper and professional investigations is underlined by a number of wrongful dismissal cases such as Bhasin V Best Buy Canada Ltd ( O.J. No. 5282 (Sup. Ct. J.) and Paulich V Westfair Foods Ltd ( A.J. No. 138). An employer that fails to properly investigate a complaint of discrimination could be liable to the victim of that discrimination for failure to meet its obligations under human rights legislation. On the other hand, if an employee is improperly accused and dismissed due to allegations of wrongdoing, the employer may be compelled by court action for a substantial financial payment (Workplace investigations: Avoid Acting First and Asking Questions Later, Federated Press Paper, Andrea York and Iris Fischer, Blake, Cassels and Graydon LLP). There are several factors that require appropriate risk management considerations to be made during the course of an investigation. At all times, it is crucial for the assigned investigator to keep the concept of “due diligence” in mind. Due Diligence is a term used for a number of concepts involving either the performance of an investigation of a business or person prior to the signing of a contract, or the performance of an act with a certain standard of care. It can be a legal obligation, but the term will more commonly apply to voluntary investigations. (http://en.wikipedia.org/wiki/Due_diligence)
This brings us to the question as to “What can government and private organizations do to ensure that they are applying the right amount of due diligence to the conduct of administrative investigations”?
Administrative investigations can have a very negative impact on the reputation and livelihood of the individual being investigated and they can bring a large amount of liability to both the institution that directed the investigation take place as well as the individual assigned with carrying out the investigation. The following recommendations are provided to assist in building a solid framework for your organization’s administrative investigations and thereby minimizing the risk that comes with them:
- Develop clearly articulated administrative investigation policies and procedures and ensure that employees are aware of those rules and adhere to them;
- Ensure that any individual assigned to conduct administrative investigations has undergone appropriate training and holds the required skills and personal attributes to conduct professional investigations; and
- Ensure that appropriate oversight and audit procedures are in place to review administrative investigations and develop “lessons learned” to constantly update the policies and procedures.
It is extremely important for all organizations to ensure that they have the proper strategies in place to minimize the risk to their core business functions and their employees. Ensuring that administrative investigations are conducted in a professional and focused manner is one of those strategies.