Archived - Guidance Series - Best Practices in Investigations
Table of Contents
- 1. Introduction
- 2. Legislation and policy
- 3. Purpose of investigation
- 4. Getting started
- 5. Methods of investigation
- 6. Principles of procedural fairness
- 7. The investigation report
- 8. Conclusion
- 9. Existing resources
With the coming into force of the new Public Service Employment Act (PSEA), deputy heads will have, for the first time, the authority to revoke internal appointments they have made, or to take corrective action. When after investigation, they are satisfied that an error, an omission or improper conduct affected the selection of a person for appointment.
The objective of this document is to set out best practices in the investigation of staffing issues.
Organizations are already familiar with carrying out investigations in a number of areas under the deputy head's authority. For example, in the human resources area, organizations will have carried out investigations into alleged misconduct, grievances, complaints of harassment and complaints of alleged conflict of interest. However, investigating complaints and appeals of staffing decisions has been the sole jurisdiction of the Public Service Commission (PSC) until the coming into force of the new PSEA. This document shares best practices the PSC has developed, based on its experience investigating staffing complaints.
This document will help a deputy head determine how to investigate a staffing matter. It does not address the issue of when a deputy head should or should not investigate a possible error, omission or improper conduct in an appointment process, nor when an employee might wish to bring the matter to the attention of the deputy head. Appendix 1 is the Report of the Working Group on Deputy Head Investigations, which lists a number of factors to be considered in deciding whether an investigation is warranted.
A reference in this document to the deputy head includes any person to whom the deputy head has delegated the authority to make decisions regarding investigations or corrective action. Note that the deputy head cannot delegate the decision to revoke an appointment.
The PSEA makes only one direct reference to investigations undertaken by the deputy head. Section 15(3) states:
"Where the PSC authorizes a deputy head to make appointments pursuant to an internal appointment process, the authorization must include the power to revoke those appointments and to take corrective action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment."
Thus the only statutory requirement is that an investigation be held. The extent and formality of the investigation will depend on the nature of the error, omission or improper conduct being investigated.
The PSC Policy on Corrective Action and Revocation requires that deputy heads establish an organizational policy in this area. At a minimum, the policy must include the requirement that, before deciding to take corrective action or revoke an appointment, persons whose appointments are affected by the decision have been given an opportunity to be heard. There are additional policy requirements where a person's appointment is going to be revoked.
Note that the requirement for procedural fairness (opportunity to be heard) is with respect to the deputy head's decision to take corrective action or revoke an appointment.
The legislation provides that a person whose appointment is revoked by the deputy head may make a complaint to the Public Service Staffing Tribunal that the revocation was unreasonable. The person whose appointment is revoked will thus be provided with an opportunity to be heard by an impartial third party in a quasi-judicial setting.
The purpose of the investigation is to find the facts upon which the deputy head will decide if there was an error, omission or improper conduct that affected who was selected for appointment. If the investigator finds such an error, he or she may have the further role of recommending to the deputy head appropriate corrective action. However, this second purpose would be specifically requested by the deputy head in the particular circumstances of the case.
The way an investigation is conducted will depend very much on the issue that has come to the attention of the deputy head. If information has been received that indicates that some of the essential qualifications have not been assessed, the investigation might consist of a quick telephone call to the manager or a file review to confirm what was assessed. Confirmation that assessment of certain essential qualifications was not carried out could lead to a brief report to the deputy head, confirming these facts. If requested to do so by the deputy head, the investigator might recommend as corrective action, that the essential qualifications be assessed. In this case, the investigation will be quite informal. In deciding on the corrective action, the deputy head will need to inform those affected of the proposed corrective action and how it will be carried out. A more structured approach may be needed depending on the complexity of the situation.
Two matters need to be kept in mind during the investigation. The first is that the investigation must be conducted in the official language preferences of the persons consulted. Attention should also be paid to any requirements for accommodation by anyone who requests it.
Persons chosen to investigate an appointment process may come from within or from outside the organization. The choice of investigator may vary depending on the nature of the investigation. For example, if the issue is straightforward, the deputy head might assign a human resources advisor (one not involved in the process). If, on the other hand, the investigation concerns complex or sensitive claims, the deputy head might wish to hire an outside investigator with no previous connection with the organization. In either case, the role of the investigator is to find facts to allow the deputy head to make an informed decision.
The following is a list of some attributes which a deputy head may wish to consider in deciding who will conduct the investigation:
- respect for others
- ability to handle sensitive information
- experience in conducting investigations
- knowledge of the principles of procedural fairness
- knowledge of investigation techniques
- ability to identify key issues and facts
- ability to analyse facts
- effective oral communication
- ability to write clearly and concisely
- official language proficiency
The investigator chosen must be able to carry out the investigation in a fair and objective manner. This means that the investigator must have no personal interest in the matter and must be able to find facts without taking sides in the dispute. For example, it is recommended that the investigator chosen not be someone involved in the specific appointment process in question, nor have any family, personal or social ties with any of the persons involved. The investigator should not have offered any public opinions about the case, nor have exhibited any favouritism or hostility towards any of the persons involved.
The deputy head should set out a mandate for the investigator to ensure that both of them have the same understanding of the purpose of the investigation. For example, if the deputy head has reason to believe that not all the essential qualifications were assessed in the appointment process, the mandate given to the investigator might be to "examine whether all essential qualifications were assessed".
Establish the terms of reference of the investigation
Some considerations for the terms of reference are:
- Documents to be examined: for example, the PSEA, the Public Service Employment Regulations (PSER) relevant PSC policies, organizational policies, qualification standards.
- Method of investigation: the deputy head might wish to specify that the investigation is to be carried out through interviews, in writing or by some other method.
- Authorization: the deputy head might require that the investigator ask for authorization to conduct interviews or meetings, to gather documents, or to use organizational premises.
- Review of information provided: it could be specified that each person who has provided information is to be afforded an opportunity to review the reporting of that information and comment on its accuracy.
- Requirement for a report: the deputy head may wish to receive a report of the findings.
- Review of report: the deputy head may wish to review a copy of the report before it is finalized.
- Requirement for a file: depending on the complexity of the case, the deputy head may wish to have any notes taken and other relevant documents kept on a file, to be forwarded to the deputy head upon completion of the investigation.
- Timelines for the investigation.
In many cases it is good practice to keep a file with all documents and records of conversations relevant to the investigation. This information will be useful in preparing an investigation report (if required). There may be some very straightforward cases where the investigator can review the appointment process file or talk to the manager and immediately complete the investigation, but in many cases, the facts will not be so easy to determine and will involve several interviews or meetings. For this reason it is advisable to have an investigation file.
This file is a government record and will be subject to both the Privacy Act and the Access to Information Act. A person about whom the investigator gathers information has the right to have access to the information about him or her. The file will also be subject to any organizational requirements for retention.
Prior to commencing the investigation, the investigator should review any information available. This may be contained in a letter from an interested party, who has requested that the deputy head conduct an investigation, an audit report, information from senior management, or information gathered by the person who has decided that an investigation will be conducted. It is imperative that the investigator understand the issue or issues in question in order that he or she knows what to investigate. If the issues are unclear, the investigator may have to go back to the source (e.g., the person who carried out the audit, the person who requested the investigation) for further clarification. There may be additional information already available, such as the assessment documents, statement of merit criteria or advertisement of the appointment process.
The following features are part of a good investigation plan:
- Identification of the issue(s):
- What is the error, omission or improper conduct contended?
- What are the points disputed?
- Application of the Act, regulations, PSC policy, organizational policy:
- What sections of the Act and regulations are relevant to the issue?
- What policies apply?
- Determination of what information is needed:
- What documents or records need to be examined?
- Which persons need to be interviewed?
- Are there other relevant documents, directives?
- Developing the questions needed to obtain the information:
- What questions must be answered in order to find the facts?
- Determining the order in which the information should be obtained:
- Should certain documents be examined before persons are questioned?
- Determine the method of investigation:
- What method would be best to obtain the information, given the circumstances of the case?
An interview is a method of investigation where the investigator conducts an individual meeting with each person who can provide information relevant to the issues. Persons to be interviewed might include members of the assessment board, the manager, affected persons, the human resources advisor, the person who brought the matter to the attention of the deputy head and other persons who have direct knowledge concerning the issues.
If the case is complex, a written statement of issues might be sent to all those persons to be interviewed, setting out the context and the questions to be answered through the investigation. The interviews are usually conducted at the workplace or in a mutually acceptable location.
A meeting is a method of investigation in which those persons affected by the matter meet in order to present information and positions on the issues under investigation. The meeting could be in person, by teleconference or video conference, or a combination. It provides the persons with the opportunity to be heard and allows them to explain their actions concerning the matter. Persons who might be invited to attend the meeting are the assessment board members, the manager, persons affected, the human resources advisor, and other persons who have direct knowledge concerning the issues.
The investigation may be conducted through written submissions. This may be a useful method if those involved are in different geographic locations, where there is only one issue to be determined, or where the persons involved agree on most of the facts.
The investigator would write to those persons involved outlining the nature of the investigation and the issues to be resolved. The investigator would invite comments from affected persons, or might pose specific questions to them. One drawback of this method is that the information presented in writing may not be clear. In that event, the investigator may find it necessary to conduct a follow-up to clarify matters.
The Supreme Court of Canada established that an administrative decision-maker is obliged to act fairly when a decision is made that will have serious implications for the persons involved. Thus the deputy head is obliged to act fairly and respect the principles of procedural fairness when deciding to take corrective action or to revoke an appointment. Investigators may also have a duty to act fairly, and the extent of that duty depends on the nature of their investigation and the impact on those involved.
The following passage from a more recent Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817 sheds additional light on the principles of procedural fairness:
"The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.
Several factors are relevant to determining the content of the duty of fairness:
- the nature of the decision being made and process followed in making it;
- the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
- the importance of the decision to the individual or individuals affected;
- the legitimate expectations of the person challenging the decision; and
- the choices of procedure made by the agency itself. This list is not exhaustive."
The deputy head will be required to make his or her decision in a procedurally fair manner, and will likely be held to a higher standard of procedural fairness in a case resulting in a revocation of an appointment than in a case involving corrective action.
What effect does the requirement for the deputy head to act in a procedurally fair manner have on the investigation conducted? The answer would seem to depend on the nature of the issue at stake. The duty to act in a procedurally fair manner entails, for example, giving the employee whose appointment is challenged the opportunity to examine the evidence relating to his or her appointment and giving him or her the opportunity to present his or her evidence and arguments relating to his or her appointment.
In most cases, the investigator will likely be required to provide a report to the deputy head. The investigation report is a written report on the issue(s) raised, the investigator's findings, analysis and conclusions. The report should be clearly written with a logical description of the information obtained, and with well-reasoned conclusions.
Other important aspects of a good report are:
- it achieves its purpose by answering the questions that were set out in the mandate for the investigator;
- it is designed to meet the needs of the decision-maker;
- it is rigorous - the decision-maker must be able to rely on the facts presented in the report and those facts must be based on the evidence in the file;
- the report is clear and written in neutral language that the decision-maker and other readers will understand;
- the report is concise and conveys all necessary information, but no more than is necessary; the investigator deals only with issues set out in his or her mandate;
- the report is structured in such a way so that information can be located easily. For example, creating mandate, background, issues, findings, analysis and conclusions sections.
The following are some suggested best practices for investigators:
- before submitting the report, set it aside for a day or two and then read it afresh this may give you a clearer view of where changes need to be made;
- ask yourself if someone unfamiliar with the situation could readily understand the report;
- when re-reading the report, ensure that it is coherent, not repetitive and presents the information in the right place;
- ensure that the report corresponds to the mandate given.
If the final result is likely to be a revocation, the investigator will need to comply with the rules of procedural fairness. The investigator will ensure that relevant information gathered during the investigation is disclosed to the appointee and the department's representative. The investigator may do this by preparing a preliminary case report, which consists of the issues, facts and information gathered during the investigation, and inviting written comment. Any changes to the information as a result of the comments will be shared with those involved. The investigator will then analyse the information and comments received and reach conclusions. The investigator then issues the investigation report.
In summary, investigations must be conducted within the framework of the legislation and applicable policies, and with consideration given to the procedural fairness requirements determined by the specific circumstances of the case. Important practices include choosing a competent investigator, establishing a clear mandate for the investigator, keeping an accurate file, preparing an investigation plan and completing a clear, well-reasoned investigation report which will allow the deputy head to make a fair and informed decision.
PSC Investigations Branch
Existing departmental practices and policies related to investigations
The following reflects the work of the working group on Deputy Head (DH) Investigations, a sub-group to the Staffing Recourse Working Group. The mandate of this working group, consisting of representatives from bargaining agents, departments and central agencies, is to provide guidance on the use of investigations that deputy heads may conduct into employment matters.
The issues which the working group identified were that departments may need some guidance related to:
- the authority now vested in the deputy heads to revoke appointments; and
- the discretionary authority of deputy heads to investigate issues related to staffing processes.
It is recognized that under the new Public Service Employment Act (PSEA), recourse for unsuccessful candidates in internal appointment processes is to the Public Service Staffing Tribunal (PSST). Employees may make a complaint that they were not appointed by reason of an abuse of authority in applying merit, an abuse of authority in deciding between an advertised and a non-advertised process, and where there has been a failure to assess the complainant in the official language of his/her choice. Employees may also make a complaint to the PSST if their appointment is revoked by a deputy head or the Public Service Commission (PSC) following an investigation, on the grounds that the revocation was unreasonable.
While the working group recognized that the formal recourse vehicle will be complaints to the PSST, employees always have been able to, and will continue to be able to, raise concerns with the deputy head. Concerns can come to the deputy head's attention by any means (from any person, via the media, from their own employees, from their own observations, an audit etc). Deputy heads already have and will continue to have, the discretion to conduct an investigation at any time, should it be deemed necessary.
With regard to investigations, it was noted that while the departmental authority to conduct investigations in a variety of areas is not new, the internal investigative capacity in some departments may not be well established. Deputy heads are reminded that the PSC can be asked to conduct investigations into staffing matters on their behalf.
3. Section 15 (3) of the Public Service Employment Act
Section 15 (3) of the PSEA describes the new authority provided to deputy heads as follows:
"... the authorization (of internal appointment authority) must include the power to revoke those appointments and to take correction action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment."
While it is clear that a deputy head can investigate concerns under the current system, with the new legislation deputy heads will now have the authority to revoke internal appointments in their organizations after investigation if an error, or omission, or improper conduct affected the selection process.
4. Steps to follow
Departments should develop communication materials including all elements of new departmental authorities and responsibilities as a result of the PSEA and disseminate these to all employees. This material would include information on the new authority for deputy heads to revoke appointments following an investigation and the discretion to conduct investigations related to the staffing process.
Is an investigation warranted?
Once a concern has been brought to the attention of the deputy head, he/she would exercise his or her own judgement and discretionary authority and determine if an investigation is warranted. Deputy heads are not required to conduct an investigation into every concern brought to their attention. In considering what if any course of action to follow, deputy heads may want to consider the following questions:
- What is the nature of the concern?
- Does the deputy head have all of the necessary information to understand the issue?
- Was the matter brought forward in a reasonable timeframe?
- Is there an allegation that an error, an omission or improper conduct has taken place?
- Does the concern warrant an investigation?
- Is there another body that has the authority to address the concern?
- Could the issue be addressed under other avenues internal to the department, such as through an audit and review, or through other external processes e.g. Public Service Staffing Tribunal, Public Service Labour Relations Board, Information or Privacy Commissions, Public Service Commission, Canadian Human Rights Commission, etc?
- Is it serious enough that the deputy head may want to investigate anyway?
- If the concern raised is found to be true, what would be the consequences?
- Does it impact on the appointment or proposed appointment?
- Might it lead to revocation?
- Is the concern limited to a specific situation or does it raise issues related to the broader application of public service values and the application of merit?
- Is it similar to another allegation previously raised?
- If true, could it be a systemic practice in the department?
- Does it concern the application of merit overall?
Note that the decision to investigate is based on a case-by-case review of the facts at the time in question, and is at the discretion of the deputy head. The deputy head may wish to use existing investigation resources and organizations to assist him or her in determining whether an investigation is warranted.
Once a decision is made to look into a particular matter, the concern should be addressed in a manner warranted by the nature of the case and at the deputy head's discretion. In the event that the deputy head decides to investigate, decisions such as who will conduct the investigation on behalf of the deputy head, what is the role of the employee and what is the role of the union, would have to be addressed within the context of the specific concern. Deputy heads may wish to use existing investigation resources and organizations to assist him or her to investigate staffing concerns. A number of resources currently exist which can help in the conduct of investigations and are referenced below.
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