protect yourself: conducting legally defensible workplace ... · protect yourself: conducting...

Krista Siedlak

Protect Yourself: Conducting Legally Defensible Workplace Investigations

Why Investigations are Important

Importance of Investigating Morgan v. Herman Miller Canada

Facts:

• Morgan alleged discrimination based on race

o Assigned menial tasks

oWork outside business hours

o Email with racist overtones

o Unfairly put on probation

• Herman Miller did not investigate

• terminated Morgan

Importance of Investigating

Held:

• no discriminatory treatment

• failed to investigate discrimination

• termination act of reprisal for complaint

• total of $77,799 in lost wages and injury to dignity, feelings self-respect

Conducting Proper Investigations

Chavalo v. Toronto Police Services

Facts:

• Chuvalo filed harassment complaint re: supervisor

• alleged nine incidents of sexual harassment

• supervisor brought four counter complaints including insubordination

• first time investigator assigned

Conducting Proper Investigations • found “he said/she said”

• no harassment finding on complaint

• Chuvalo could not use allegations as defence

• recommended termination

Conducting Proper Investigations Held:

• sexual harassment was found

• termination was reprisal

• investigation was flawed

• awarded additional damages

• ordered to retain expert to train on investigations

Refresher on the Law

Overview

The Law

Ontario Human Rights Code

Discriminatory Harassment

Occupational Health and Safety Act

Workplace Harassment

Workplace Violence

Domestic Violence

OHRC: Discriminatory Harassment

course of

vexatious conduct or comment

related to a protected ground

in a workplace

knew or unwelcome

ought to have known unwelcome

Grounds of Discrimination

• age • ethnic origin

• disability • citizenship

• religion • place or origin

• sex • family status

• sexual orientation • marital status

• race • gender identity

• color • gender expression

• ancestry • record of offences

• comments or actions based on a protected ground that make employee uncomfortable

• need not be directed at employee

Poisoned Work Environment

OHSA: Workplace Harassment

course of vexatious

conduct or comment

against a worker in a workplace

knew or unwelcome

ought to have known

unwelcome

a course of …

• a pattern of behavior

• a single serious incident may be offensive enough

• examine nature of the conduct

Test for Harassment

Test for Harassment

vexatious conduct or comment …

• abusive

• insulting

• threatening

• humiliating

• demeaning; or

• result in discomfort

against a worker in workplace …

• worker means FT, PT, contractors, consultants or volunteers

• workplace definition under MOL vs. OHRC

Test for Harassment

unwelcome …

• perpetrator knew behaviour unwelcome

• reasonable person would know behavior unwelcome

• perspective of person who is being harassed

Test for Harassment

consent vs. welcome

• even if consent, doesn’t mean welcome

• behavior can change from welcome to unwelcome

• silence does not mean welcome

Test for Harassment

Workplace Violence

exercise of, attempt to exercise, or threat to

exercise

physical force

by a person

against worker

in a workplace

that could cause harm or physical injury

“...widely understood to be a pattern of behaviour used by one person to gain power and control over another person with whom he/she has or has had an intimate relationship. This pattern of behaviour may include physical violence, sexual, emotional, and psychological intimidation, verbal abuse, stalking, and using electronic devices to harass and control.”

Ministry of Labour

Domestic Violence

Understanding Bullying

• physical

• verbal

• non-verbal

• psychological

• social

• cyber

• supervisory

Types of Bullying

• it is often about control and power

• another form of abuse

• bullying escalates if unchecked

• not as simple as bully and victim

• bully can be victim and vice versa

Psychology of Bullying

Dynamics of Bullying

Bully

Active Participant

Participant

Passive Participant

Supporter

Victim

Mechanics of Investigation

• procedural fairness

• due process

Overarching Principles

• timing is of the essence

• don’t rush at the sacrifice of process

• plan before react

Timing

• formal written complaint

• verbal complaint

• employee concerns

Complaint Received

When

Advantages

Disadvantages

• less serious issues

• single incident

• clear issues

• less expensive

• generally faster

• less disruptive

• hard to remain neutral

• time commitment

• appearance of

neutrality

Appoint Internal vs. External Investigator

• single verses team investigations

• trained in law and due process

• not discipline respondent in past

• cross-investigate, if possible

Selection of Internal Investigator

External Investigator

When Advantages Disadvantages

• more serious allegations

• multiple incidents • upper management or

HR politics at play • police involved

• neutral (or perceived neutral)

• “buy-in” from parties expertise in area

• more costly • may take longer

• well trained on law re: harassment and bullying

• understands notion of procedural fairness

• appreciates psychological aspects

• experience on complex issues

Selection of External Investigator

• neutral (unbiased)

• credible

• good listener

• empathetic

Attributes of a Successful Investigator

• finding of fact

• finding of fact and law

Mandate of Investigator

• advise complainant/respondent

• identity of investigator

• outline process that will be followed

• provide any required timelines

• notify of next steps

Notify the Parties

• respondent receives copy of complaint or summary

of allegations • complainant provided with respondent response (if applicable)

Particulars provided to Parties

• continue to work together

• separate the parties

• paid leave of absence with pay

Options for Parties during Investigation

• who

• what

• when

• where

• how

Create Investigation Plan

• complainant/respondent interviews separate days (if possible)

• allow sufficient time between interviews

• neutral, private interview location

Logistics of Interviews

• support person, if not witness

• union representative

• lawyer

Role of other Parties during Interview

Suggested Order of Interviews

complainant

respondent

witness

follow-up interviews

(as necessary)

• opening statement

• background information

• relationship with parties

• the story

• allegations one by one

The Interview

• identify potential witnesses

• resolution seeking

• confidentiality obligations

The Interview

• background questions

• open-ended questions

• follow-up questions

• cross-examination type questions

Types of Questions

• new allegations raised

• new evidence emerges after initial interview

• contradictory evidence emerges

When to Re-Interview Parties

• take notes

• handwritten or laptop

• verbatim (if possible)

• first person

Note Taking During Interviews

• provide witness opportunity to review

• corrections in margins

• sign off on statements

• keep interview notes

Note Taking During Interviews

• emails

• texts

• phone records

• audio/video tapes

• relevant policies

Other Sources of Evidence

• grid

• timeline

• chronology

• binder

Keeping Track of the Evidence

Evaluating the Evidence

• balance of probabilities

• 50 + 1

• more serious the allegation, more proof required

Standard of Proof Required

• corroborating evidence

• consistency in telling evidence

• inconsistencies in story

• evidence believable

• opportunity to observe things

• personal interest in outcome

Credibility of Witnesses

• admission

• direct evidence

• indirect evidence

• physical evidence

• hearsay

• similar fact evidence

• character evidence

Type and Quality of Evidence

Findings and Report Writing

• nature of complaint

• mandate

• process used (including witnesses and documents)

• policies relied on

• list of allegations

Content of a Report

• credibility assessment

• summary of fact linked to allegations

• finding on each allegation

• whether of policy

• conclusion

• recommendations (maybe)

Content of a Report

• simple language

• headings and bullets

• neutral tone

Tips to Writing a Report

• no harassment

• harassment

• no harassment but inappropriate conduct

• insufficient evidence to make finding

Findings

Conclusion of Investigation

• discipline

• individual sensitivity training

• group training

• apology (respondent and/or organization)

Possible Consequences of Finding

• outcome of the investigation i.e. findings

• typically do not provide copy of the report

• summary of the findings

• remind re: confidentiality

• thank you for your participation

• right to be free from retaliation

What to Tell the Complainant/Respondent

• training

• team building activities

• re-iterate commitment to respect in the workplace

Repair Strained Team Relations

For more information regarding

Workplace Investigations, please contact:

Krista Siedlak Employment Lawyer & Workplace Trainer

krista@tmllp.ca

@

THE END