A Step-by-Step Guide to Conducting Effective Workplace Investigations.pdf
HOW TO CONDUCT A BULLET PROOF HARASSMENT INVESTIGATION
1. HOW TO CONDUCT A
BULLET-PROOF
HARASSMENT INVESTIGATION
Kristin Taylor
(416) 860-2973
ktaylor@casselsbrock.com
2. Overview of Presentation
● When and why is an investigation necessary?
● What kind of investigation is required? When can you do
it yourself? When should you hire someone else?
● How to investigate? What are the procedural
requirements?
● How should you document it?
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3. When and Why Investigate?
● Courts, arbitrators and tribunals recognize that alleged
harassment or serious misconduct have significant
impact on an employee and that employees have a right
to hear and to respond to allegations against them before
a decision is made that will have significant impact on
their employment.
● Adjudicators impose an obligation on the employer to
conduct a fair and effective workplace investigation.
● There is potential liability if an employer either fails to
conduct a workplace investigation or botches the
investigation.
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4. On Receiving the Complaint
● Treat the complaint seriously and promptly.
● Solicit additional details, if required, to ensure you
understand the complaint.
● Consider whether or not to proceed if the complainant
refuses to participate.
● Defuse workplace tensions pending investigation.
● Recommend EAP.
● Review the applicable policy and any applicable
collective agreement to ensure compliance.
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5. What Kind of Investigation?
● What are the allegations?
● Can they be addressed informally through a meeting or
mediation or is an investigation required?
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6. Who Should Investigate?
● Internal vs. External
● Consider need for
● neutrality
● competency
● prompt response
● privilege
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7. Notify the Respondent
● Identify complaint received and how it will be investigated
and by whom.
● Caution against any interference with investigation,
including conversations with potential witnesses. Put this
in writing to ensure no misunderstanding.
● Address questions as to representation: is there
entitlement under a collective agreement or the policy?
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8. Develop the Procedural Script
● Complaint filed.
● Authority for investigation.
● Allegations taken seriously, full cooperation expected and
required.
● Outline process for collective evidence.
● Deal with recording and/or representation issues.
● Cover importance of confidentiality, respect for integrity of
the process, no reprisals.
● Warn as to consequences of interference or retaliation.
● Address timeline and temporary measures, if any.
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9. Develop the Substantive Script
● Formulate the list of questions.
● Start general and move to specific.
● Ensure all material allegations are covered with sufficient
particularity.
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10. Interview the Respondent and Witnesses
● Inquire with respect to all material allegations, with
particulars, but do not provide the complaint itself, if there
are items extraneous to the investigation.
● Encourage any questions or clarifications.
● Document the response at the time, secure a witness
statement that is signed and dated; address concerns for
corrections / changing evidence vs. clarifications.
● Inquire as to witnesses.
● Repeat warnings regarding confidentiality and non-
interference.
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11. Follow up, if required, with complainant
● Deal with allegations and/or explanations provided by the
respondent and any witnesses.
● Do NOT reach any conclusions until the investigation is
completed.
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12. Draft the Report
● Two parts: evidence and conclusions.
● Apply appropriate standard of proof.
● Document findings on credibility and reasons for them.
Make sure conclusions are supported by the evidence.
● Do not fail to reach conclusions.
● Should recommendations - a third part - be included?
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13. How to Document?
● Implement the report or have a very good, documented
rationale why not.
● Achieve closure - advise both complainant and
respondent of the outcome.
● Consider how to respond to requests to produce the
report.
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