Workplace Investigations Presentation

Workplace Investigations
Conducting “Effective”
Workplace Investigations
Sarnia, ON
March 05, 2015
Facilitated by:
Anthony Folan
Integral HR Solutions Inc.
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WWW.INTEGRALHRSOLUTIONS.CA

Conducting Effective Workplace
Investigations - Agenda
High profile harassment suits dominated the
headlines last year and one labour lawyer
says the media coverage has made workers
more aware of their rights. Now, she says HR
managers must be extra vigilant to avoid risk.
“Obligation to investigate allegations of
harassment has existed for several years but
the CBC case brought it front and centre,”
says Norton Rose Fulbright lawyer, Sarah
Crossley.
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“Employees are becoming more
knowledgeable about their rights and the
expectation for employers to understand the
law and to conduct a proper investigation
has reached a higher level,” she continued.
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Of course most employers wouldn’t
intentionally ignore a serious allegation of
harassment but Crossley says even
organizations with the best intentions could
be putting themselves at risk if they’re not
adequately equipped to handle an
investigation.
“It’s important that employers treat all
complaints seriously and if they decide to
investigate, it needs to be effective and fair.”
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“If you fail to investigate, if you do a shoddy
job or if you don’t get the right people to do
it, then there is a significant risk from a
financial liability perspective but there’s also a
reputational risk to employers,” she
continued.
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Crossley says whoever is tasked with
investigating should have some formal
training as well as all the necessary tools for
the job. She added that they don’t always
have to be hired externally but internal
investigators can pose a number of problems.
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“You might not want someone internal
handling a very senior person within the
organization or a very high profile person within
the organization,” explained Crossley. “It can
be difficult for someone internal to do an
investigation if there’s a power imbalance.”
Crossley also added that an investigation could
lose credibility if it was carried out by someone
who had had any past dealings with the
employees involved.
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“What’s really important – whether they’re
internal or external – is that you have someone
who understands how to conduct a full and fair
investigation,” she said. “Because at the end of
the day, and at the end of the investigation,
some important decisions will have to be
made.”
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Why Investigate?
Top 6 Investigation Pitfalls
Court Rulings
The Importance of Procedural Fairness
Failing to Document
Preparing a Final Report
Dealing with the Outcome of the
Investigation
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Investigations
Value of fact-based decision vs. emotion-
based decision
Legal obligations and legal risks of not
investigating/not investigating effectively
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Investigations
Legal obligations:
Workplace violence/harassment
legislation (Bill 168)
Human rights-based claims
Practical considerations:
Terminations for Just Cause
Company culture
Company standards
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Investigations
Simply conducting an investigation is
not enough
The investigation must also be done
properly
Overlooking the importance of
process can be a costly mistake
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The Importance of Process
Internal investigator?
External investigator?
Legal counsel present?
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Top 6 (Costly)Common Pitfalls
 Failing to provide procedural fairness to the
responding party
 Using inexperienced or untrained investigators
 Failing to remain neutral
 Failing to properly document the investigation
 Failing to make findings of fact at the conclusion of
the investigation
 Failing to investigate the “I don’t want to make an
official complaint”
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Process & Proven Strategies
1. Complaints must be taken seriously and acted upon
promptly.
2. The investigator should be independent and objective.
3. The investigator should be neutral.
4. The investigator should not be in a position of authority
over any of the parties to the complaint.
5. The findings should be reported to someone with
sufficient authority to enforce them.
6. Investigators must be knowledgeable about the law,
the organization’s policy and complaint procedure, and
understand the methods for conducting investigations.
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Process & Proven Strategies
7. The investigator should make and keep written notes of the
investigation and any report that is prepared or submitted.
8. Investigators should take steps to protect confidentiality to
the extent possible. Information should only be shared on a
need-to-know basis.
9. The investigation must be “impartial, timely, fair, and address
all relevant issues.”
10. The investigation report should summarize the allegations,
what steps were taken during the investigation and the
evidence gathered. The report should also contain findings on
each allegation.
11. Investigations should commence as quickly as possible and
finish in a timely fashion.
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Procedural Fairness: Case Study
 Elgert v. Home Hardware Stores Ltd. Carswell Alta
1263 (Alta. C.A.)
 17 year supervisory employee terminated following
“alleged” sexual assault
 Not advised of complaint or afforded opportunity
to respond
 “You know what you did!” (company response)
 Awarded 24 months’ notice and $75,000 in punitive
damages for faulty investigation
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Procedural Fairness: Case Study
From the Judge…
“Employers must take seriously allegations of
sexual harassment… Its responsibilities do not
give it license to conduct an inept or unfair
investigation or behave in malicious, vindictive
or outrageous ways…”
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Procedural Fairness
When conducting an interview…
Begin with general explanation of purpose
of meeting
Remind employee of reprisal rights
Discuss confidentiality:
Not entirely possible
Investigator will only disclose details as
necessary
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Procedural Fairness
Fundamentals of Procedural Fairness:
Advise respondent complaint has been
made
Advise respondent of particulars of
complaint (i.e. who, what, where, when…)
Afford respondent opportunity to respond
to each allegation
The goal of the investigation is NOT to
ambush the responding party
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“Untrained Investigators”
C.R. v. Schneider National Carriers Inc.
Employee accused of sexual harassment
Complainants lodged their complaints
together and were interviewed at the same
time
Identity of the complainants not revealed
Particulars of complaints not addressed
Interviews not documented
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“They were inexperienced at dealing with the
issues raised in this action and they also
lacked the necessary training to do so. I
readily acknowledge that the defendant’s
management team should not be required to
match the standards or practices of criminal
investigators. However, basic fundamentals of
fair play must be but were not observed and
for that reason, the results of the investigation
are tainted.”
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When selecting an investigator consider:
Investigation experience / training
Expertise regarding subject-matter of
investigation
Seriousness of the complaint
Time and resources
Internal vs. external investigators
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Vernon v. B.C. Ministry of Housing and Social
Development (2012)
30 year employee accused of bullying and
harassment
Adversarial and confrontational “interrogation”
Investigator incorrectly reported evidence
Employee awarded $182,173 (18 months pay +
aggravated damages + punitive damages)
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“The interviews were not simple question and
answer affairs. They were interrogations. They
were not carried out in an impartial manner.
Witnesses who spoke favourably about Ms.
Vernon were accused of lying.”
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An investigator should be:
Unbiased
Consistent with each employee being
interviewed
Neutral in their conduct and questions
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“Process”
DO:
Ask questions
Listen actively to the responses
provided
Use follow-up questions
Restate information
Remain Neutral
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“Process”
Avoid missing key information
Cover the following issues:
Did it happen?
When did it happen?
Was conduct intentional?
Was conduct condoned?
Who witnessed it?
Is there an explanation?
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“Failing to Document”
Tong v. Home Depot of Canada Inc.
 54 year-old sales associate terminated for cause
on the basis of “time fraud”
 Newly-hired floor manager appointed as
investigator
 Destroyed notes of investigation
 Conclusions based solely on his own observations
 Exaggerated evidence in report to management
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“Regrettably, it appears that Mr.
Macdonald…began with the firm belief that
the plaintiff was the wrongdoer.
His investigation was fatally flawed.
He destroyed his original notes and presented
only a summary prepared just prior to his
meeting…which contained inaccurate
exaggerations of the evidence.”
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Interviewers should keep detailed notes
 Why?
Refresh memory
Record of what was said
Proves you did a proper investigation
Provides context for making decision
Fairness, transparency and internal
integrity
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Interviewers notes should:
Record who was interviewed, who was
present
Record where and when meeting
occurred
Record what was discussed
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“Final Report”
The investigator should keep in mind that the
report not only provides the basis for the
internal resolution of the complaint but is also
the cornerstone of the employer’s evidence of
due diligence in dealing with the allegations.
It is a confidential document and should be
provided only to the ultimate decision-maker.
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“Final Report”
The report should include all allegations made by
the complainant and the accused’s responses.
A brief summary of relevant evidence should be
presented. It may be necessary to discuss issues
of credibility.
Based on the evidence, the report should present
conclusions as to whether each allegation is
substantiated, unsubstantiated or partly
substantiated.
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“Final Report”
Finally, the report should make recommendations
for resolution of the complaint.
Factors affecting the severity of discipline should
be addressed, such as the attitude of the
harasser since the incident, his or her length of
service or prior disciplinary record.
As well, this would be the place to raise broader
systemic issues where it is found that a poisoned
atmosphere prevails in the workplace.
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“Salient Points”
Key Question:
Is there convincing evidence that the
allegations against the respondent
are true?
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When answering this question…
 Look carefully at each party’s story
 Look at how each party answered questions
 Fill in missing information (circle back over
notes)
 Look for corroboration
 Is there other evidence (documentary,
electronic, surveillance) that supports one
side more than the other?
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Final Steps:
A decision must be made:
The complaint is either has merit or,
the complaint is unsubstantiated
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Company response will depend on the outcome of
the investigation
 Think creatively about solutions that may restore
workplace balance
 Respect privacy interests
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Non-DisciplinaryResponses:
 Coaching / Training
 Apologies
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If discipline is warranted:
Investigation findings should be
adequately explained
Discipline should be:
Proportionate
Responsive to complaint
Legally compliant
Communicated in writing
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Termination of employment
Just Cause
will severance be offered on a gratuitous and
“without prejudice” basis?
Without Cause
what will the severance package look like?
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Concluding Remarks
Harassment complaints can be quite disruptive and
divisive. An investigation can either make it worse or,
if handled correctly, can actually have a healing
effect and can help the parties move on with their
lives.
From my experience, the most important
considerations are to treat all parties fairly and with
respect, to provide detailed information to the
respondent, to be fully versed in the law and the
impact of workplace harassment and to consider the
outcome and remedy that best suits the particular
circumstances involved.
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Concluding Remarks
If an investigator follows those steps, both
sides will be far less likely to litigate the matter
and there is a greater chance that it can be
resolved simply, quietly, and cost effectively!
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Workplace Harassment
Behaviour falls into 3 categories:
a) Acceptable
b) Inappropriate/Unacceptable
c) Harassing/Violent
How do we define the fine line between
unacceptable behaviour and harassment?
Notice………
Intent………
Direction………
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Workplace Violence
Integral HR Solutions defines "workplace
violence" as:
(a) the exercise of physical force by a
person against a worker in a workplace
that causes, or could cause, physical
injury to the worker; and/or
b) an attempt to exercise physical force
against a worker in a workplace that
could cause physical injury.
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Workplace Violence
"Workplace violence" means (c) a
statement or behaviour that is reasonable
for a worker to interpret as a threat to
exercise physical force against the
worker, in a workplace, that could cause
physical injury to a worker.
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Legislative Requirements - Bill 168
Under the Occupational Health & Safety Act, Bill 168
require employers to protect workers violence in the
workplace whether perpetrated by employees, clients,
or other individuals the employer serves (e.g.
contractors).
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Bill 168 includes a number of duties that are triggered when an
employer has reason to believe that harassment or violence has
occurred or is likely to occur, including specific duties to:
• identify the source of the harassment or violence;
• ensure that further harassment or violence is prevented/stopped;
• where necessary, take steps to remove the source of the
harassment or violence from the workplace;
• ensure that "adequate steps" are taken to "remedy the effects of
the harassment or violence"; and
• contact law enforcement, where appropriate.
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As noted above, Bill 168 creates specific and clear
obligations on employers to prevent, and respond to
workplace violence and harassment. For example,
employers must:
• ensure that every worker is protected from workplace
related harassment or violence; and
• develop, on a regular basis, compulsory harassment
and violence prevention training for employees and
managers.
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Supervisory Responsibilities
The prohibition against harassment extends
not only to the person conducting the
harassment but also to individuals who are in
a position to potentially prevent the
harassment from taking place. Accordingly,
the employer itself, or other employees may
be added as parties to a complaint
proceeding if it is determined that party knew
or should have known of the harassment in
question.
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Zero Tolerance
Workplace violence, harassment, and discrimination
in any form will not be tolerated. Any allegation of
workplace violence harassment and or discrimination
will be thoroughly investigated and treated as a
serious matter. Employees found to be in violation of
this policy will be subject to disciplinary action up to
and including termination of employment.
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Concluding Remarks
 Questions…
 Feedback…
 Thank You…
Anthony S. Folan
Integral HR Solutions Inc.
GTA Office (905) 846-3390
Sarnia Office (226) 784-1466
Toll-free Number 1 (866) 908-1066
Mobile Number (416) 274-9693
anthonyfolan@integralhrsolutions.ca
www.integralhrsolutions.ca
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