What is an Investigation?
When conflict erupts in the workplace, collaborative approaches – informal conversations, facilitation, negotiation, conflict coaching, mediation – can help parties seek mutually beneficial solutions. But when complaints of workplace harassment or violence are made, employers may have to take a “work against,” or adversarial approach, which includes a thorough investigation of the allegations.
The Occupational Health and Safety Act (OSHA) mandates that Ontario employers with five or more employees implement a workplace harassment and violence policy and a program to ensure the policy is used effectively. That policy must contain provisions for employees to report incidents and for the investigation of those complaints. It also requires annual training on the policy and the program.
The Investigation Process
If informal or alternative methods of resolution are not successful, an investigation is launched. An internal or external investigator:
- Receives a specific mandate for the investigation developed by the employer and reviews the documentation detailing the complaint.
- Conducts interviews with those he or she believes have relevant information. Typically these interviews are electronically recorded, to both ensure accuracy and eliminate disputes over what was or was not said.
- Reviews all documents related to the complaint, as well as relevant company policies.
- Makes findings of fact including determining if the allegations of harassment or violence, as defined by policy, took place.
- Makes recommendations for further action. This will only be done if the mandate of the investigator includes the request to make recommendations.
The employer must then decide whether or not to adopt the recommendations of the investigator or what sort of disciplinary measures will be taken, which can include but is not limited to: unpaid leave, manditory training, reorganizing the work teams all the way to termination.
The investigator may be called as a witness if the respondent (the employee against whom allegations are made) challenges a disciplinary action through arbitration or litigation. Ensuring conversations are recorded and procedures are followed exactingly is essential to avoid having the process declared invalid by an arbitrator or Court should the matter find its way to such a forum.
Internal vs. External Investigators
Can a member of management conduct an investigation? Yes – but, a lack of training can impede the investigation and even negate its findings. One of the challenges is that there are a multitude of “traps” that untrained investigators can fall into.
If Employee X has been found guilty of harassment in the past, for instance, it can be easy to infer guilt in the present. Without sufficient evidence to prove wrongdoing in the current situation, this assumption can invalidate the investigation and leave the organization open to further legal action.
Many allegations of violence should be reported to the police and let them handle the investigation, although this does not relieve the employer from doing its own investigation also.
The goal of an investigation is to obtain objective evidence. An internal investigator may bring bias – even unintentionally – into the process. Even if he or she is neutral, it is difficult to maintain the appearance of impartiality. The appearance of impartiality is as important as actual impartiality. The workforce may not accept the legitimacy of the process and the findings may later be challenged on grounds of bias and it just may convince a Judge.
When the stakes are high, hiring a trained investigator promotes an objective process – in reality and in the eyes of the employees and possible future decision makers such as judges and arbitrators. In this way it safeguards the rights of the complainant, respondent, and the organization as a whole. If companies decide to handle the matter internally, it is advisable that they consult with a trained investigator for guidance.
Do I Need to Start an Investigation?
When is investigation your best option? Some examples include:
- An employee engages in a long-term pattern of behaviour, such as harassment or threats. Investigations can be a step in progressive discipline, providing evidence and cause for dismissal.
- An employee alleges that his/her supervisor is harassing him/her. An investigation can help uncover whether that is a substantiated claim or if the employee simply misinterpreted legitimate performance related feedback, which is a common occurrence.
- Situations involving complaints of violence, fraud, or theft.
- Alternative methods of resolution, such as conflict coaching and mediation, have failed to resolve the issue.
Thorough, and objective investigations help protect the rights of all of the parties involved, ensure the organization is protected legally, and provide the workforce with the reassurance that harassment and violence policies will be followed to the letter. If you require investigative services or a preliminary consultation, please contact John Curtis.