Page 18 - CCCA 292467 Magazine_Spring 2019

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It remains that “privilege in and of itself is very diffcult, process for both the complainant and respondent to feel that
and it is certainly something very diffcult to internal investiga- they have been fairly heard, that the allegations have been care-
tions,” says Dufort-Langlois. fully and thoughtfully considered, and the evidence judiciously
Klasios agrees it can be a challenge to protect privilege, par- cogitated, says Phillips.
ticularly with emails: “Not everything we’re going to get is going While by and large that is something that public sector or-
to be protected by privilege. A lot of it will depend on the nature ganizations tend to do, it’s an altogether different story in the
of what you’re dealing with. If it’s something that’s quite signif- private sector. Employers are generally not obligated to provide
cant, every in-house counsel will want to make sure early on at a full copy of the fnal report to the parties. In fact, the report is
the outset that they put their own protocols in place to make normally circulated only among decision-makers.
sure they can preserve as much privilege as they can without “It’s important to do an analysis of how much information
restricting the ability to communicate and get to the facts.” is shared at what level,” says Scrimshaw. “Ensuring that conf-
The issue becomes even more convoluted when dealing dentiality and privacy laws are complied with internally is ab-
with multi-jurisdictional internal investigations. The European solutely an important part of the role of the in-house counsel.”
Union, for instance, does not protect communications between But the matter doesn’t end with the fnal report. More often
in-house counsel and corporate employees. That can create a than not, says Gatchalian, an internal investigation will have
signifcant issue for multinational companies, says Klasios. a signifcant impact in the workplace. They are unpleasant,
“That may change the dynamic in terms of how information is stressful and usually lead to additional harm to relationships
shared and how communications fow, so a lot of organizations in the workplace.
involved in cross-border investigations need to have proper
safeguards in place.” As dufort-LangLois puts
In-house counsel should also contemplate honing their soft it, it is the “elephant in the
skills, as interviews are often the most crucial stage of the in- room.” He suggests in-house
vestigation. While knowing the right questions to ask is critical counsel work with the HR
and part of the skillset that litigators in particular develop over department to help right the
the years, a good investigator also has the know-how and sen- ship. “Just thinking that it’s a
sitivity to establish the “right climate” that puts people at ease self-contained issue, that it’s a
to disclose what they know, says Dufort-Langlois. “Regardless legal problem, that it’s an HR
of whether you’re interviewing a complainant, a respondent or problem that will go away af-
an independent witness, these people are going through a hard terwards is putting your head
time. There are ways of going through that process in a tactful in the sand,” he says.
manner. So even if people might ultimately not be satisfed with
your conclusions, you want some buy-in as to the manner in However, as diffcult as internal investigations may be, it can
which the investigation was conducted.” also be an opportunity to set things right. Investigations should
not only focus on the specifc incident that led to the inquiry
but also the bigger picture.
“You want to make sure that there’s not a larger problem
tHe rePort in the organization, and if there’s a gap in your processes or
your policies, you want to identify them at that time so that
you can make broader changes to address any gaps down the
Some maintain that providing the complainant and the respon- road,” says Klasios. ❚
dent a copy of the full report—or at least the aspects of the re-
port that pertain to the allegations—also leads to buy-in of the
investigative process. Full disclosure is an important part of the Luis Millán is a law and business journalist based in Montreal.

18 CCCa MaGazInE | SPRInG 2019 PRInTEMPS