What To Do With the Investigator’s Report
There are several different kinds of cases where the employer has an investigator’s report that they’d like to put into evidence. Employers often engage an investigator in cases where the investigation might be conducted by someone other than the supervisor and the report of that investigation forms the basis for discipline. I see them a lot in law enforcement cases and in sexual harassment cases but they pop up in other cases as well.
Let’s start with the most basic question. What is an investigator’s report? Self-evidently, it’s the report of the investigator that usually summarizes the verbal testimony of the witnesses they interviewed and the documents they reviewed. The documents, written statements of witnesses, or interview transcripts may also be attached. Notably, the investigator’s report is hearsay. It is the investigator's “out of court” statement about what they believed occurred. For this reason, most arbitrators do not treat investigators’ reports as evidence that can be relied upon to make a final decision. Based on the number of cases I've had where the employer presented the investigator and their report as the sole source of evidence about the case, it's clear that not every employer representative understands this.
Similarly, the investigator's testimony is also hearsay, unless there's some permissible exception or agreement by the parties. Despite a lengthy investigation, the employer is still obligated to provide admissible evidence at the arbitration hearing. This means calling the same witnesses who spoke to the investigator, and finding a witness who can verify the documents they'd like to rely on. In other words, an investigator's report is not a magic bullet for winning a case.
Often, the investigator has been hired or appointed to investigate an incident which is the subject of a different legal matter. For example, an employee has made a sexual harassment allegation against their co-worker, and the employer hires a third party investigator to determine what occurred. That investigator would gather evidence appropriate for a sexual harassment case but they might not be aware of the standard of just cause that applies in that workplace.
It is the employer's obligation to investigate the conduct that is the subject of discipline. If they outsource that work to another party or department, they still must ensure that the investigation was thorough and that the evidence in the case is presented at the hearing.
Some employers will also rely on the investigator's recommendation for level of discipline. Take that sexual harassment case: perhaps the investigator finds that there is evidence to support a conclusion that the misconduct occurred and that the employer might be liable for that misconduct if the issue should move forward in an EEOC case or a lawsuit. Maybe based on that finding, the investigator recommends that the employee be terminated. The employer will still bear the burden to demonstrate that there was just cause regardless of the investigator's conclusion that there might be liability. At the end of the day, it is the employer's decision about whether to impose discipline. Liability, or fear of it, may be a factor in that decision, but it isn't conclusive of just cause solely because the investigator predicts it.
What should the employer do with the investigator's report? First, they should determine it was thorough. The employer may be aware of other witnesses they'd like to interview or to ask questions that didn't relate to the underlying matter. Second, they should share it with the union at the first opportunity. If there is some need for confidentiality, the parties can reach an agreement about that. The employer should also expect to call as many of the witnesses as they can. If the union understands that the employer will use the report as a roadmap, rather than as evidence alone, there's a better chance that the union will decide to withdraw the grievance.
The union should request the investigator's report at the earliest opportunity and similarly use it as a roadmap to figure out what occurred and whether there are other witnesses that the investigator missed or failed to ask pertinent questions. The Union should figure out whether the report includes helpful facts or documents and highlight them to the employer. Finally, at the hearing, the Union should raise a hearsay objection if the employer attempts to rely solely on the report. However, if other witnesses provide direct testimony, be aware that the report may be admissible as corroborating evidence or useful as impeachment evidence. Finally, the union should review the report and consider whether, if all the facts in the report are shown to be true at hearing, there is any likelihood that they will prevail.
(Impeachment evidence is information which contradicts a fact that the other side is relying on, essentially undermining the credibility of the witness who is a cornerstone of their case)
