Conducting an Investigation: a step by step guide Analyzing, Reporting, and Ensuring You Consider...
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![Page 1: Conducting an Investigation: a step by step guide Analyzing, Reporting, and Ensuring You Consider Procedural Fairness.](https://reader036.fdocuments.net/reader036/viewer/2022062409/5697bf751a28abf838c80716/html5/thumbnails/1.jpg)
Conducting an Investigation: a step by step guide
Analyzing, Reporting, and Ensuring You
Consider Procedural Fairness
![Page 2: Conducting an Investigation: a step by step guide Analyzing, Reporting, and Ensuring You Consider Procedural Fairness.](https://reader036.fdocuments.net/reader036/viewer/2022062409/5697bf751a28abf838c80716/html5/thumbnails/2.jpg)
Objective Criteria
24(1) of The Ombudsman and Children’s Advocate Act (SK)
Where, after making an investigation under this Act, the Ombudsman is of the opinion:(a) that a decision, recommendation, act or omission that is the subject matter of the investigation appears to have been:
(i) contrary to law;(ii) unreasonable, unjust, oppressive, improperly
discriminatory or was in accordance with a rule of law, a provision of an Act, or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory;
(iii) based in whole or in part on a mistake of law or fact; or
(iv) wrong;
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Objective criteria
Contrary to Law• A decision will be contrary
to law if it is:– Contrary to a statute or
common law;– Undertaken without legal
authority;– A violation of the principles
of administrative fairness or other legal principles; or
– A failure to comply with the findings or order of a court or tribunal
Wrong• A decision is wrong if:
– It is based on an incorrect interpretation of the facts;
– It is illogical and contradicts or departs from policy, process or procedure which sets out the ‘right’ way;
– It is wrong for either moral reasons or because it is illogical; and/or
– The investigation uncovers new facts previously unknown, which now casts doubt about the correctness of the previous actions and decision.
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Procedural Fairness
Individuals about whom a decision is being made should be notified in a reasonable manner that:
a) a decision is going to be made before it is made; and
b) the basis being used to make that decision.
Reasonable Notification
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Procedural Fairness
Following proper notification and before the decision is made, the affected individual should be provided with:
a) an opportunity to review the information being considered; and
b) an opportunity to provide the decision-maker with alternative or contrary information.
The Ability to Respond
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Procedural Fairness
All relevant information should be fully and fairly considered by the decision-maker, and information that is irrelevant to the decision at hand should not be considered.
Consideration of Relevant Information
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Procedural Fairness
All decisions should be open to review and be correctable.
Decisions should be Reviewable and Correctable
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Procedural Fairness
Adequate reasons for the decision must be provided to the individual. At a minimum, reasons for a decision at all levels should include:a) a statement of the decision;
b) a summary of the information relied upon by the decision-maker;
c) an explanation of how any contradictions in the information were reconciled by the decision-maker; and
d) any other relevant reasons for making the decision.
Provision of Adequate Reasons
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Procedural Fairness
The decision maker should be free of and be seen to be free of bias.
Free From Bias
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Procedural Fairness
In addition to the minimal fair practices, additional procedures may be required for some decisions, taking into consideration the following:
a) The nature of the decision;b) The impact of the decision on the
individual or group affected;c) The rights created by law; andd) Legitimate expectations of the parties.
Additional Procedural Requirements
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Fairness Triangle
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Analyzing Information…
• Relevant• Reliable• How much weight to give the
information?
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Assessing Reliability
• Internal Consistency• External Consistency• Opportunities for Knowledge• Observation, Recall and Articulation• Interest in the Outcome• Degree of Detail• Probability
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Assessing Reliability
IS NOT ABOUT:
• Demeanor• Who the person is
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Providing Fairness
Case Assessment and Issue Identification
• Unbiased Review• Consideration of Relevant Information• Meaningful Reasons• Access to Appeal/Review• Additional Requirements
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Providing Fairness
Building an Investigative Plan• Unbiased Investigator• Notification of Issues and Information• Consideration of Relevant Information• Additional Requirements
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Providing Fairness
Interviewing• Unbiased Investigator• Notification of Issues and Information• Opportunity to Respond• Consideration of Relevant Information• Additional Requirements
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Providing Fairness
Gathering and Reviewing Information
• Unbiased Investigator• Notification of Issues and Information• Opportunity to Respond• Consideration of Relevant Information• Additional Requirements
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Providing Fairness
Analyzing Information• Unbiased Investigator and Decision Maker• Consideration of Relevant Information• Meaningful Reasons• Access to Appeal/Review• Additional Requirements
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Providing Fairness
Report Writing• Unbiased Investigator and Decision Maker• Consideration of Relevant Information• Meaningful Reasons• Access to Appeal/Review• Additional Requirements
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Analyzing Information
Pitfalls• Lack of planning• Lack of objectivity by the investigator • Reliance on unproven assumptions• Failure to follow due process• Failure to obtain all of the relevant
evidence which is available
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Analyzing Information
Pitfalls• Lack of resourcing and/or poor use of
resources• Shortcuts• Lack of leadership• Poor investigation documentation• Lack of training• Failure to consider the organisational culture
• Making unrealistic recommendations
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Panel Discussion
Pitfalls and Lessons Learned