MONDAY, AUGUST 20, 2018
ELISE MARENTETTE

 

“I want to report that I’m being harassed.” These words cause panic in many managers. Why? Mainly because they aren’t trained on how to handle the situation. The importance of being prepared for these words cannot be understated. Best practice is to train them on how to do proper workplace harassment investigation, but the reality is that unless there is a formal process to follow, the training will be challenging to apply in that moment.

Steps to Take
  1. Consider interim measures pending investigation to diffuse situation if necessary (e.g., separate parties, suspend employment).
  2. Take complainants’ statement immediately to determine if an investigation is warranted.
    • As per Section 32.0.7 of the Occupational Health & Safety Act, an employer must ensure that an investigation appropriate in the circumstances is conducted into incidents or complaints of workplace harassment.
    • As per Section 7 (2) of the Ontario Human Rights Code, every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
  3. If complex or conflict of interest exists, have a third party investigator do the investigation to ensure impartiality and credibility. This could be a licensed private investigator, human resource professional or lawyer. Note – A company lawyer is not considered unbiased.
    • As per Section 55.3 (1) of the Occupational Health & Safety Act, if the Ministry of Labour has been called, they may order a third party investigator.
  4. If doing an internal investigation, prepare general and specific questions and take statements from the respondent and witnesses.
  5. If illegal activities are involved, report to the authorities.
  6. Advise parties not to discuss details with anyone.
  7. Determine what evidence needs to be gathered. Examine applicable documents or physical evidence if applicable (e.g. emails, texts, pictures, phone logs).
  8. Recommend Employee & Family Assistance Program (EFAP) services if warranted.
  9. Complete investigation within a reasonable and realistic time frame to the circumstance, but no longer than 90 days unless there are extenuating circumstances.
  10. Summarize findings in a written report including allegation, response, witness testimony, evidence, proof, obstacles, credibility, breach of company policy and/or legislation, conclusion and recommendations for resolutions.
  11. The names of third-party witnesses should not appear in the investigation report. Their identities should be kept only by the investigator. If witnesses think their names and statements could be seen, they may not be willing to speak and provide important or complete evidence.
  12. Disclose results only to person(s) responsible for determining correction action.
    • Note – corrective and preventive action recommendations should be submitted under separate cover from the report.
    • It is not a requirement to share these reports with the joint health and safety committees (JHSC).
  13. The complainant and respondent are to be advised in writing of the findings within 10 days after the investigation is completed, including corrective action taken. A reminder to keep confidentiality of all parties in mind and that retaliation will not be tolerated.
    • It is not a requirement to give these parties the full report. A summary is sufficient.
Do Them Right or Pay the Price
  • Develop a policy and program on workplace harassment, train all employees including specific training for managers on how to conduct investigations.
  • Develop standardized reporting forms and investigation template to ensure consistency and completeness.
  • Be objective, neutral, unbiased and confidential to all parties.
  • Be thorough. Interview all involved, take detailed notes and review all evidence.
  • Take accurate notes. No conjecture of assumptions. Use a scribe if able to.
  • Be careful with audio recordings. All parties must agree and remember it could be used as evidence.
  • Ask what, where, when, why, who and how. For example:
    • Where and when did the incident(s) take place?
    • What did the person see or hear?
    • Who else was present?
    • How did they find out about the incident?
    • What else would they like to add?
  • Allow individuals to comment on how it affected them. This is important in determining the impact of the questioned conduct.
  • Avoid leading statements like “that must have been awkward for you.” Instead ask “how did you feel about that?”
  • Let the story be told. Try to guide them chronologically.
  • Stick with the facts.
  • Clarify subjective comments.
  • One person’s word against another requires a credibility check which is difficult to determine but must be addressed.
    • How credible are the respective parties?
    • Has there been other complaints about the accused? Is there a history of complainant issues?
  • Maintain integrity of information. Only provide details necessary to make interview meaningful.
  • Re-interview as new information is obtained or needed.
  • Have statements signed with name and date of interviewee(s).
Legal Considerations
  • A finding of harassment can be made if the evidence as a whole shows that, on a balance of probabilities, it is more probable than not that the alleged harassment occurred.
    • The standard of proof in harassment cases is not the criminal standard of proof (beyond a reasonable doubt) but a civil standard, which is based on a balance of probabilities. Much of the evidence is often circumstantial and contextual.
  • As per Section 34 (1) of the Ontario Human Rights Code, complainants have a one year window (from the time of the last incident) to file a complaint with the Human Rights Tribunal should they choose not to accept, or want to challenge, the internal investigation.

Reduce the risk of workplace harassment and costly litigation by having clear and unequivocal policies in place as well as a formalized process to investigate complaints. A good investigation and documentation solves problems and avoids lawsuits. If discovery is required, documentation will become evidence and is critical to the legal proceedings.

For More Information

Disclaimer – The information contained on this page is not a substitute for legal advice, explanation, opinion or recommendation.

 

 

About the Author

Elise Marentette is a Consultant at Public Services Health & Safety Association and is a passionate advocate of proactive workplace health and safety initiatives. She has over 30 years of experience recognizing, assessing and controlling hazards and is also a Certified Human Resource Leader (CHRL).