Workplace Investigations During a Pandemic: Three Things We Have Learned

John Curtis, .

Most of our work is with municipalities and various types of professional offices, so Zoom video conferences usually work well.

But what happens when the complainants, respondents, and witnesses are public works staff or other non-office staff? Or when a party or witness does not have access to a suitable computer or highspeed internet connection?

Most people have cell phones, so telephone interviews can be a good alternative, but even this can be difficult when dealing with people in remote areas of the province with poor cell reception.

The bottom line is that not everyone can participate in a video conference during an investigation. And, even if they can, there are some tricks to be mindful of. Here are three things we have learned:

1. Who’s Zoom’n Who?

The first Zoom/COVID-19 lesson I learned was: don’t assume Zoom will work just because a party or witness says, “Ok, let’s use Zoom”

During a recent investigation, about 20 minutes before the Zoom video conference call was about to start, I learned that the Complainant would be joining the video conference from his supervisor’s office, using his supervisor’s computer, and assisted by that supervisor in getting the meeting started on the computer.

This would have been terrific but for the fact that the complaint was against this very supervisor.

Not everyone understands what we do, how important impartiality is, and how important it is that witnesses feel they are being treated fairly by an independent third party. This experience brought home how it hard can be to control the interview room if you are not actually there.

As it turned out, this supervisor was not trying to manipulate the investigation result. It was actually the employer trying to accommodate the new realities of operating during a pandemic and probably a desire to demonstrate some technical sophistication by being able to adopt this “new” technology – both motivations being grounded in good faith intentions.

A little awareness of the potential problems goes a long way and usually there is some solution ready at hand. We were able to cancel the meeting and switch to a teleconference later in the day when the complainant could call us from the privacy of his own home.

Now, I make sure I discuss the need for a confidential setting that is within the technological realities of the situation when I am setting up an interview.

2. Limitations of Interviews by Telephone

Telephone interviews have many advantages for workplace investigations. As with Zoom, no travel is required. This means savings for employers as investigators spend less time on travel and more time interviewing and writing reports, which increases capacity for the investigators.

The downside of not being able to see the person being interviewed can usually be handled with careful questions. Sometimes factors like age, ethnicity, a physical disability, and other easily observable traits might be relevant to the case.

I recently had an investigation in which racism was one of the issues. One of the witnesses was reluctant to say much even though I was assured by the complainant that they would be an important witness.

As it turned out, this witness was an Asian woman and had a unique perspective on some of the events under investigation. Because I could not see her, this was not obvious. Sensing her reluctance and noticing her last name was common among those of Asian ethnicity, I started to probe for more of her perspective as a racial minority in this particular workplace.

I began by asking if she identified herself as non-white and I explained why I was asking the question. This opened up a great deal of additional information that I could easily have missed if I avoided the uncomfortable question about this witness’s race. It was a real eye-opener. Telephone interviews are not for the faint of heart.

On another occasion, the telephone interview proved exceptionally helpful. The case involved harassment allegations against a supervisor who worked with the complainant exclusively by telephone and email – similar to the way we were conducting the investigation interview.

During the telephone interview the Supervisor/Respondent shared certain documents that had been part of a problematic exchange with the Complainant several months earlier. When we began asking questions about the document the Supervisor became annoyed and short with us, demonstrating exactly one of the things about which the Complainant had complained. 

After the interview, we took a closer look at the documents and realized that the Respondent had actually sent us the wrong document – another type of mistake that had led to confusion on the part of the Complainant whose confusion had been chastised by the Respondent and was also part of the alleged harassment. The telephone interview actually offered a sort of harassment simulation upon which we were able to draw meaningful conclusions about the Respondent’s communication style.

Thoughtful use of the telephone interview can be a powerful tool for workplace investigations.

3. Documentary Evidence

Having parties and witnesses provide and explain documents is probably the most challenging part of any remote interview process. Not being able to use one’s finger to point to something on a page and ask a question can feel like wearing hand-cuffs.

The time delay between speaking about a particular document and having it scanned and emailed also offers challenges. These can mostly be addressed by careful review of documents and a follow-up call with the investigator and the witness looking at the same document, but this takes time and careful attention to detail.

No doubt, as we all become more familiar with remote communication we will learn new and innovative ways to function.

In another post we will explore some of the challenges of other missing visual information like the ability to read body language when doing an interview with a witness. Even Zoom has its limits when it comes to this aspect of the investigation process!

Duty to Investigate – “A Ticking Time Bomb”

John Curtis, .

Recently, I was retained to conduct two workplace harassment investigations related to employee complaints against senior management. Both investigations were initiated by complaints that were made to the Ministry of Labour well after the employee left the employer.

This is a double-edged sword. On the one hand, it should serve as wake-up call to any employers out there who may have disgruntled ex-employees. On the other, it may give heart to those who feel they were mistreated but believe there is nothing that can be done to prevent others from experiencing similar harassment.

Without disclosing any confidential information, the basic details of these two cases are instructive.

Scenario 1:

A senior management employee accused the CEO of prolonged harassment relating to allegations of unwarranted performance criticism, performance related humiliation in front of co-workers, and removal of job responsibilities amounting to a demotion. A formal written complaint was made. 

There was a mediation that apparently resolved all matters between the parties. The complainant left the employer for another job about three months after the mediation. Four weeks after voluntarily leaving for another job, the employee filed a complaint with Ontario’s Ministry of Labour. The Ministry found that the original complaint had never been investigated, contrary to the Occupational Health and Safety Act (OSHA) which requires the employer to investigate all complaints. It also found that there were fresh complaints which must be investigated.

The mistake that allowed the Ministry to order that the original complaints be investigated was that the mediation had no minutes of settlement and no written withdrawal of the complaint.   

The fresh complaints were part of what the employee framed as a written “exit interview” that the employer refused to conduct. Faced with no opportunity for a meaningful exit interview, the employee simply wrote down all her grievances and emailed it to the employer who did not respond. These fresh complaints were not barred by any sort of payment accompanied by a Full and Final Release Agreement that are usually associated with the termination of a disgruntled employee. Such a Release might have included a formal withdrawal of any current or potential complaints of harassment. Whether employees and employers can contract out of OSHA requirements is another question.

In the end, the complaints were found to be without merit. I also found that withdrawal of the original complaint was implied by the successful resolution of that complaint by mediation.

The problem is that the employer was forced to pay for an expensive investigation and the associated disruption and emotional upheaval amongst affected staff members that these investigations invariably bring to a workplace regardless of how thoughtfully, gently and quickly the investigator does their work.

Lessons Learned:

If mediation is part of your harassment policy process for resolving complaints (and I believe it should be), make sure that it covers the requirement for withdrawal of the complaint if the mediation is successful.  

Typically this will be included in written Minutes of Settlement following the mediation. However, it would not hurt to have guidance on this matter in the actual policy wording related to mediation.

When difficult employees leave on their own accord, keep in mind the need for an amicable exit process. It might not always feel right to throw a retirement party, but careful thought needs to be given to how best to set a positive tone surrounding the employee’s departure. There are companies that offer this type of service and it can be worth its weight in gold.

Scenario 2:

This involved a restaurant employee who had been terminated and had been arguing with the employer about how much pay in lieu of notice to which she was entitled for several months after termination. About $1,500 was in dispute on that score. About a year after termination and four months after the last correspondence about pay in lieu of notice, the employee brought her complaint to the Ministry of Labour which promptly ordered an investigation.

The complaints of harassment and sexual harassment were serious. However, there was concern that they were being done simply as leverage in the termination pay dispute. 

While that may have been true, the complaints were found to have merit. In this case, the complaints were against a key managing partner in the business. Facing the stark conclusions of harassment and sexual harassment, the business relationship amongst the ownership group was severed and the viability of the business was seriously jeopardized – it may not recover.

There was ample evidence that many bystander employees and some business partners knew about the abuse that was going on and, rather than speaking out, they hoped it would stop on its own.

Lessons Learned:

Treat your employees as the most precious resource in your business. So-called bystanders have an important role to play in dealing with harassment and sexual harassment. Don’t be cheap when terminating employees.

The path to a “kinder and gentler” world is often not so kind and gentle.  A workplace harassment investigation is best understood as a form of adversarial process that can be a source of great stress and consternation for all involved. 

Because of the requirements on employers under Ontario’s Occupational Health and Safety Act, an investigation may be unavoidable. Make sure your policy is up to date and pay careful attention to the conflict competency of your workplace culture. A conflict-incompetent culture is not just unpleasant – it is a significant “cost centre”.