Workplace Investigations Presentation
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Transcript of 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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Conducting Effective WorkplaceInvestigations - 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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Conducting Effective WorkplaceInvestigations - Agenda
“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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Conducting Effective WorkplaceInvestigations - Agenda
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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Conducting Effective WorkplaceInvestigations - Agenda
“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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Conducting Effective WorkplaceInvestigations - Agenda
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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Conducting Effective WorkplaceInvestigations - Agenda
“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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Conducting Effective WorkplaceInvestigations - Agenda
“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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Conducting Effective WorkplaceInvestigations - Agenda
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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Conducting Effective WorkplaceInvestigations
Value of fact-based decision vs. emotion-
based decision
Legal obligations and legal risks of not
investigating/not investigating effectively
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Conducting Effective WorkplaceInvestigations
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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Conducting Effective WorkplaceInvestigations
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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“Untrained Investigators”
“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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“Untrained Investigators”
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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“Untrained Investigators”
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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“Untrained Investigators”
“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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“Untrained Investigators”
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 responsesprovided
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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“Failing to Document”
“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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“Failing to Document”
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 internalintegrity
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“Failing to Document”
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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“Salient Points”
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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“Salient Points”
Final Steps:
A decision must be made:
The complaint is either has merit or,
the complaint is unsubstantiated
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“Salient Points”
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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“Salient Points”
Non-Disciplinary Responses:
Coaching / Training
Apologies
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“Salient Points”
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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“Salient Points”
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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Legislative Requirements - Bill 168
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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Legislative Requirements - Bill 168
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
www.integralhrsolutions.ca
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