Mary complains that everyone went to lunch and they didn’t invite her — again. Bob complains his supervisor is harassing him and giving him all the worst assignments. Sue tearfully reveals her supervisor has been sexually harassing her. What do all of these incidents have in common?
In each case, the employer likely has a duty to investigate — not just a moral duty, not just an obligation as a good HR practice, but a legal responsibility.
In Morgan v Herman Miller Canada Inc., the Ontario Human Rights Tribunal found — despite the fact the employee had not actually been discriminated against or harassed — that the employer had breached its duty to act reasonably in responding to allegations of harassment. The tribunal awarded Morgan more than $70,000 in damages.
In Disotell v Kraft Canada Inc., the Ontario Superior Court of Justice found the employer had failed to conduct its investigation in a serious manner because it failed to interview all relevant parties, and refused to provide the employee with particulars of the alleged incidents.
In Elger v Home Hardware Stores Limited, the Alberta Court of Appeal found an employee accused of harassment had been wrongfully dismissed and awarded punitive damages because of the flawed workplace investigation. The employer’s investigator was untrained and biased against the accused employee, and had failed to disclose the details of the allegations to the accused until after the dismissal had occurred.
When an employer is faced with a complaint of harassment, a legal obligation to investigate and address the complaint may arise under human rights, occupational health and safety or worker’s compensation legislation.
The challenges inherent in conducting a workplace investigation fall onto the shoulders of HR professionals and managers who are increasingly expected to act as though they are trained, experienced investigators.
Plan the investigation
When you receive a complaint, the first thing to do is plan the investigation. There are a number of items to consider and set out in an investigation plan:
•the identities or interests of the individuals involved
•the type of investigation required (formal or informal)
•whether external assistance is needed
•whether a particular investigative process must be followed (by law or policy)
•whether serious disciplinary action or termination is a likely outcome
•whether the issue involves off-duty conduct or criminal or quasi-criminal conduct.
Considering and setting these items out in a written plan will provide a better understanding of the nature and context of the allegations and how to move forward.
The accused employee should be presumed innocent until proven guilty and, if possible, should not be suspended during the investigation.
However, if the alleged misconduct is serious, if the complainant cannot safely be in the workplace with the accused or if there is a reasonable concern the accused will retaliate against the complainant or compromise the investigation, consider suspending the accused with pay pending the outcome of the investigation.
Assign a point person to lead the investigation and ensure the investigator has received proper training, is familiar with applicable policies and does not have any connection, personal or otherwise, to the complaint or the parties.
The particulars of the complaint should be shared with the accused, and the accused should be asked to respond in writing. The accused should be interviewed after adequate background information has been gathered to enable a proper assessment of credibility. This also permits the investigator to gather particulars and disclose them to the accused in the course of the investigation, giving the accused an opportunity to respond and explain.
A full and accurate report with conclusions should be produced once the investigation has been completed. The employer should strive to make a determination, even in circumstances where there are competing versions of events. In those circumstances, the threshold may be the “balance of probabilities” — which version of events is more likely to be true. Finally, the outcome of the investigation should be communicated to the parties.
If the complaint is substantiated, take steps to prevent the misconduct from recurring. Consider whether training or counselling are required, and review applicable internal policies to determine if changes are needed. Consider whether the complainant will need compensation or accommodation, whether the accused is willing to apologize, and whether discipline is appropriate.
If the complaint is unsubstantiated, explain how that conclusion was reached. Consider whether and how to rehabilitate the relationships among the affected employees.
A flawed workplace investigation can result in significant damages and legal costs. By completing a workplace investigation properly and thoughtfully, employers can reduce their exposure to litigation and liability — and create a more productive and cohesive workplace.
Michael S. Richards is a partner and Nicholas Sharratt is a summer student at law firm Davis in Toronto. Richards can be reached at (416) 941-5395 or firstname.lastname@example.org.
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