No matter how pleasant, cooperative, or functional a workplace might be, no organization is immune to the risk of workplace harassment or similar incidents which can trigger a workplace investigation.
Now more than ever, employers must be both proactive in managing the spectre and fallout of an incident, or alleged incident, of workplace harassment – the legal definition of which includes sexual harassment. A good investigation requires more than mere sleuthing and should never be done in a panic. An effective investigation and harassment response strategy requires knowledge of one’s legal obligations and a keen awareness of any unique factors that might influence both the investigation itself and any desired outcomes.
An employer’s starting place is knowing what legal obligations must be met. Ontario’s Occupational Health and Safety Act contains a number of very specific obligations designed to prevent and address workplace harassment. Employers must have both a workplace harassment policy and a written program designed to ensure the policy’s implementation. In the event of a harassment complaint, employers must promptly conduct an investigation and inform the complainant and alleged harasser of the investigation’s results and corrective action to be taken, if any.
In conducting a workplace investigation, employers should remember the following crucial components:
- Interviews: Apart from interviewing the complainant and accused, objective (and, if necessary, third party) interviewers should speak with others that may have knowledge of the relevant incident or parties;
- Note-taking: All interviews, no matter how informal or how they are conducted, should be documented;
- Decision: Any resulting decision, and any corrective action, should be carefully and sensitively explained to the complainant and alleged harasser. Employers should be aware of confidentiality obligations that come with their decision;
- Follow-up: If one or both parties remain as employees, employers should arrange follow-up meetings to assess the effectiveness of any corrective action and ensure that the complainant remains comfortable in the workplace.
Knowing and following proper workplace investigation procedures is crucial. However, the individual steps mentioned above are only a starting point. Any incident of harassment, as with any individual workplace, will have its own nuances and particularities. Employers must be flexible and bear in mind other related concerns that could well arise in the context of a workplace investigation. Here are some other things to bear in mind:
- Scope and scale – Employers conducting a workplace investigation should remain cognizant of the appropriate scope and scale of the investigation, which may change as details are revealed;
- Privacy – Employers have unique privacy obligations with respect to both employee and third party information that often affect how a workplace investigation can be carried out;
- Accommodation – Does the employee involved in an investigation, be it the complainant, accused worker, or witness, have a disability or other circumstance that requires accommodation and how can that individual be accommodated without compromising the investigation’s integrity;
- Socio-economic factors – Employers should be aware of socio-economic factors that could influence an employee’s behaviour during an investigation.
One question employers may need to answer is whether or not the nature of the complaint requires a third party investigator. The employer will need to weigh the benefit of having outside experience and an objective voice (something that could prove very handy if a legal challenge later results) against the possible disruption of having an outsider in your workplace. Smaller organizations, in particular, should bear in mind this potential impact on their workplace team dynamics. Of course, mindful legal advisors and investigators will have solutions that minimize disruption and help ease workplace concerns, such as conducting off-site interviews.
Finally, remember the famous Wayne Gretzky adage: “Skate to where the puck is going, not to wear it’s been!” Once the implicated individuals have been advised of the investigation’s results, broader workplace action may be necessary. Employers should use a workplace investigation to help position the organization moving forward, not simply to resolve a problem and return the workplace to business-as-usual. Proactive steps forward might mean training, establishing clearer HR roles, or simply engaging with other employees that may also have concerns about behaviour in the workplace. A proactive, workplace-wide response following an investigation could well avoid another one in the near future.
Kyle Lambert is an employment lawyer and commercial litigator at McMillan LLP. Kyle advises businesses on a wide array of employment matters, including hiring, terminations, workplace investigations, contracts, employment policies, and human rights. In his commercial litigation practice, Kyle acts for businesses and shareholders in a variety of commercial disputes, including contract disputes, shareholder remedy claims, and product liability matters. Kyle’s full bio can be found at mcmillan.ca/KyleLambert.