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Reviewing your Investigation Practices

March 10, 2021

Employers are required to have a bullying and harassment policy in place and a key component to that policy is the investigation procedure. Taking the time to consider the components of an appropriate investigation procedure for your specific workplace and reviewing that policy on a regular basis, can help lessen the potential financial liability and reputational risk associated with bullying and harassment complaints.

The starting point for your investigation procedure is to ensure that it complies with the formal requirements set out by WorkSafe BC. Those requirements include the following:

  • how and when investigations will be conducted;
  • what will be included in the investigation;
  • the roles and responsibilities of employers, supervisors, workers and others such as investigators, witnesses or union representatives;
  • follow up to the investigation such as corrective actions and time frame; and
  • record keeping requirements.

Beyond these formal requirements, you may wish to consider how best to structure your investigation practices to accomplish two goals. Those goals are to 1) find out what happened and 2)  lessen or eliminate the possibility of it happening again. Every workplace is unique which requires every investigation procedure to be crafted with that uniqueness in mind.

The investigation process starts with the receipt of a complaint. Regardless of any other step in your investigation procedure, the main goal will always be to deal with the complaint as quickly as possible. Doing so not only increases your chances of discovering what truly happened because memories will be freshest, but it also leaves less time for employees to talk about the incident which may lead to rumours and disruptive behaviours in the workplace. If a complaint is not dealt with right away, it has the potential to not only have the behaviour continue but can also contribute to the development of a toxic work environment.

Every complaint should be documented in writing. If the initial complaint is made either verbally or informally through text or email, the employee should be taken through the formal process of provision of a written complaint. That written complaint should include the employee’s version of what happened, when it happened and any witnesses that may have seen what happened. It is good practice to have a template complaint form that employees fill out. If an informal or verbal complaint is made, the complaining employee should be advised in writing that all complaints are taken seriously and in compliance with the established investigation procedure, the first step being the completion of the written complaint. If the written complaint is not provided, make sure that steps are taken to follow up with the employee and provide any assistance that they need in turning their informal complaint into a formal written complaint. The goal of this is not to increase the number of complaints that you get, but to ensure that as an employer you are taking steps that WorkSafe BC and the Human Rights Tribunal will see as supportive of the employee and reasonable in the face of having received an informal complaint.

Once the complaint is received, document collection should begin. The documents that you will want to gather include:

  • copies of any relevant policies and procedures;
  • documentation regarding relevant past discipline; and
  •  data from company owned mobile devices including potentially emails of those involved depending on the circumstances.

Once you have received the complaint, you will need to determine who should be conducting the investigation. It is helpful if the Investigation Procedure details the considerations that go into that determination. If your internal HR department has the capacity to handle the investigation, consider whether they have the sufficient experience and expertise given the nature of the complaint. If there is any perceived or potential conflict of interest or bias, an external investigator should be hired. If the parties involved in the complaint are senior to your HR or otherwise in a role that has some influence over HR, an external investigator should conduct the investigation. If the allegations are of a serious nature or have the potential to result in legal action or be made public, you should hire an external investigator. If you want the investigation to remain confidential and covered by legal privilege you will need to hire an external investigator. If there is a potential for the investigation to result in a termination you should hire an external investigator. If the nature of the complaint is one that could lead to a complaint under the Human Rights Act, hire an external investigator. The Investigation Procedure should detail all of the considerations specific to your workplace for determining whether to handle the investigation internally or not.

The next step in the Investigation Procedure is interviewing potential witnesses. It will almost always be best to start by interviewing the complainant and anyone that they directly name in the complaint. With other witnesses, you will want to interview only those that you believe have a relevant contribution to make, such as people who directly witnessed events or managers who can speak to past behaviour. In the interview with the complainant, ensure that they are told that their complaint is being taken seriously, that you will address the complaint as quickly as possible, that no conclusions will be drawn until the investigation is complete and if it seems appropriate, the employee will be referred to your Employee Assistance Program or provided with access to other potential resources. Detail what must be communicated to the complainant in your Investigation Procedure. Depending on the nature of the complaint and the circumstances, you may also want to revise work situations so that the complainant is not working with the person that they perceive as threatening. In some cases it may be appropriate to have both the complainant and the respondent on leave while the investigation is being conducted. Consider whether the Investigation Procedure should set out the circumstances in which revisions will be made to work arrangements, including circumstances where employees will be placed on leave until the investigation has been completed.

Once all relevant witnesses have been interviewed and all relevant documents have been reviewed, the final stage of the Investigation is to reach conclusions. An effective Investigation Procedure will include a requirement that the investigation not only determine what happened, but also what steps need to be taken to remedy the situation and to prevent it from happening again. Your Investigation Procedure should specify these requirements.

The importance of a strong investigation procedure cannot be overstated. The potential harm to workplaces that can result from unaddressed complaints is significant. The consequence of unaddressed or improperly addressed complaints ranges from reputational damage and unproductive workplaces, to significant financial exposure. An improperly conducted investigation can lead to reprisals by WorkSafe, can found the basis for punitive or aggravated damages, or can be viewed by a Human Rights Tribunal as an act of discrimination on its own.

This update was authored by Rose Keith. Have questions regarding the topic discussed? Contact Rose at [email protected] or anyone else listed on the authors page.

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Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: March 10, 2021.

©Harper Grey LLP 2021

 

 

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