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Procedural Fairness in Workplace Investigations

John Curtis, .

One of the most common mistakes made in workplace harassment investigations is a failure to conduct the investigation in a procedurally fair way.

Procedural fairness has its roots in criminal and administrative law. The level of procedural fairness required varies depending on what is at stake. In the criminal law context, an accused person’s freedom may be at stake.

For criminal law matters, one expects a court to ensure an extremely high level of procedural fairness. This is why criminally accused people don’t even have to take the stand to give evidence in their own defence. The Crown must prove its case and cannot force an accused to incriminate them self.

By comparison, an administrative body such as the Worker’s Compensation Board has a standard for procedural fairness that looks rather relaxed compared to the criminal context.

What does procedural fairness mean for workplace investigations? 

At an operational level it has many meanings. Essentially it is about ensuring that the procedural elements of the investigation do not unfairly affect any of the parties and especially that procedural elements do not affect one of the parties to the advantage of the other.

In the workplace investigation context, procedural fairness involves questions like:

  • Who receives complaints of harassment? What if that person is the respondent?
  • Who does the investigation? Someone internal or an external professional?
  • How quickly must the investigation start and how quickly must it be completed? Five days, five weeks, five months…?
  • What interim measures should be imposed? Paid leave, change of duties, etc.?
  • What measures are taken to prevent witnesses from coordinating their testimony? Signed non-disclosure undertakings, penalties for interference set out in the company policy?
  • Has the respondent’s right to know what the complaints are been properly observed? How much detail is one entitled to know about a complaint against them? What if the written complaint is highly inflammatory? What if it was only made verbally?

The list goes on.

The courts have punished some employers with large punitive damages awards for failure to conduct a procedurally fair investigation. Awards of over $75,000 have been made for procedural fairness errors. This type of award is intended in part to serve as a wake-up call to employers to take procedural fairness seriously.

Below, I will share two stories as cautionary tales to illustrate the importance of procedural fairness in the workplace harassment investigation context. The cases are only loosely based on amalgamations of facts from real investigations and should be understood only in the educational context in which they are offered.

Case 1

A senior manager (Mr. Newbie) experiences some friction with three long-serving employees who report directly to him. The organization has about fifty employees in total.

The employees bring their complaints to the Executive Director (ED). In consultation with the Human Resources Director, the ED decides that this friction can be managed after brief meetings with all the people involved. The problem appears to the ED and HR Director to be about the newly hired employee, Mr. Newbie, having some new ideas about how things should be done and the employees are pushing back to test his resolve and regain their perceived loss of power to establish their own routines at work. This informal approach appears to work. 

Eventually, all the parties meet in a kind of mediation-like context but without an external mediator. The ED and HR Director facilitate the discussion. Information and perceptions are shared. Reciprocal and genuine sounding apologies are made. People shake hands. There are smiles and laughter all around. The ED and HR Director even check-in every few weeks with the individuals in the group to see if the peace is being maintained. Management has done everything right. Right?

Sadly, the friction resumes. It turns out that Mr. Newbie had replaced a much-loved employee who had been terminated under a cloud of rumors about poor performance, misappropriation of company resources, etc. The three long-term employees felt great allegiance to their former boss.

After he had been unable to secure an alternate position for almost a year, the former manager, who still socialized with his old staff, began to influence them, encouraging them to sabotage Mr. Newbie.

Mr. Newbie filed a harassment complaint against all three of his direct reports. The complaint contained serious allegations of harassment. Management decided to hire an outside investigator. 

The investigator was provided with the written complaint of Mr. Newbie and that same written complaint was shared with the three respondents by the investigator. Each of them wrote out a response to the complaints against them and met with the investigator. These written responses contained numerous counter-complaints against Mr. Newbie. Most of the complaints in these counter-complaints were repeats of the earlier complaints that Mr. Newbie and management thought had been resolved nine months earlier.

Procedural Fairness Mistake

The investigator never shared the counter-complaints with Mr. Newbie.

The investigator simply interviewed him and asked him questions related to the counter-complaints. The investigator felt that he had an adequate understanding of those complaints and did not feel the need to provide the written counter-complaints.

The problem was that Mr. Newbie did not even know he was now being investigated for harassment. He thought these old complaints were just part of the context of his complaints against the others. As the interview when on, he began to feel like he was being investigated for harassment. Several weeks later, before the investigator’s report was produced, Mr. Newbie got legal advice and complained about a lack of procedural fairness.

The investigator never explained that he was both a complainant and a respondent. Partly as a result of this error, the investigator also never discovered that the earlier complaints had been entirely resolved.   

The investigator also improperly relied on the company harassment policy to justify not having shared the three respondent’s counter-complaints with Mr. Newbie. The policy was silent on this aspect of procedural fairness, but that does not mean it was not required. In an age of computers, using the copy and paste functions, there are many harassment policies out there that have problems like this. Investigators need to know the foundational elements of procedural fairness and apply them even if the policies are wrong or somehow lacking guidance on a particular problem. These problems and the confidence to create correct procedures on the fly can be extremely challenging for those without legal training.

There are several examples in the investigation case law that warn investigators against a type of “cold question” style of investigations in which investigators begin by prompting the respondent for information before revealing the true allegations. This style of investigation may be commonplace in some TV law enforcement investigations, but it risks breaching procedural fairness standards. Meeting with a respondent without giving advanced notice or details of the complaint against them can come with costly consequences.

Some rudimentary best practices for ensuring the respondent receives procedural fairness include:

  • Sufficient advanced notice of the investigation and the request for an interview
  • A written copy of the complaint and/or details of the allegations prior to meeting so that the respondent is not blindsided by claims and can prepare to discuss potentially sensitive topics. Often it is best that the investigator prepares this after meeting with the complainant. This can be a good way to take out unnecessary and inflammatory language, and adds clarity to the complaint.
  • Plenty of time and accommodation during the interview process in order to give a proper and full opportunity to respond to the allegations and provide their own version of events. Sometimes this means allowing parties to have a lawyer, spouse, or personal support person present during the interview process, provided they are subject to the same confidentiality undertakings. Sometimes it requires follow-up questions by telephone or email.

Case 2

In a recent investigation for a medium-sized public sector employer, involving complaints of harassment against all the senior people in the organization, an unusually difficult procedural fairness concern arose. The complaints were all linked together in the form of an alleged conspiracy to harass the complainant over a period of several years. The respondents included the CEO, in-house counsel, the Human Resources Director, Members of the Board of Directors, and others.

The problem was: who handles this complaint? Even if one of the accused senior staff hired outside counsel or an independent HR consultant to develop an investigation mandate, retain an investigator, and assist them with the logistics of the investigation, they could be accused of selecting a biased lawyer or HR consultant.

It would likewise not have been fair to insist that one of the less senior people in HR or another department take on the administrative duties of selecting and communicating with an external investigator to investigate the senior management team. That junior person would essentially be overseeing an investigation of his or her superiors – highly uncomfortable as an employee who likes their job, and not immune from claims of bias.

The other issue was that even if this had been attempted, none of the more junior people were qualified to take on this role from an experience and competency perspective. What can be done in such situations?

The Occupational Health and Safety Act has no guidance on this. This seems to be a gap in the legislation that could be filled by the Ministry of Labour taking on the role of appointing and providing instructions to an investigator in these unusual cases. I doubt the government wants such responsibility for micromanaging workplace investigations.

A more practical solution might be to anticipate this sort of problem and set up a process in advance so that such matters are referred to a pre-selected, independent law firm or HR professional. Ideally, that outside agent would limit their involvement with the employer to only perform services in these limited circumstances to avoid the criticism that they are not truly independent enough. 

In this case, the in-house lawyer (the only lawyer in the legal department) decided to carry the ball even though he was accused of harassment. It was not clear exactly what he had done to harass the complainant based on the initial written complaint except the suggestion that he was complicit with others also identified who had more specific allegations against them.

Of all the senior people at this workplace, it was the in-house counsel who knew best what sort of procedural fairness concerns his involvement raised. His approach was to seek the advice of outside counsel. I was allowed to review the correspondence with that advisor as part of my investigation, which was very helpful. It helped me establish that the in-house counsel had been exceptionally careful and had relied on the advice of a highly experienced and wise lawyer. The advice was essentially to attempt to have the complaints mediated and it almost worked.

Sadly, despite several successful mediation sessions which narrowed some of the issues, significant issues remained unresolved in the mind of the complainant and an investigation was required.

By the time I got involved, the in-house counsel had left and everyone except the Plaintiff believed the complaints had been resolved through mediation more than a year earlier. I was retained by an out-of-town law firm, serving as the interim in-house counsel, so the necessary independence of the person managing the investigation process on behalf of the employer was clearly established.

This was very important. That firm understood the importance of their independence and the need to examine the activities of the former in-house counsel in connection with the complaint management process. This is why I was allowed to review otherwise privileged correspondence by the in-house counsel with outside counsel in connection with the complaints.

What that review of correspondence revealed was very careful correspondence and selection of a truly independent, unbiased outside counsel whose advice was followed. The in-house counsel may have dug his own procedural fairness grave by getting involved in this way. For me it conjured up images of nuclear power plant workers in Chernobyl marching back to the exploded reactor to fight the fire, sacrificing themselves for the greater good.  He was a brave soul. Who knew procedural fairness could be so dangerous!

Procedural Fairness Best Practice Lesson

In advance of a specific complaint, design a procedurally fair protocol to handle complaints against a large block of senior management people, such as an independent law firm or Human Resources Professional, who is restricted to this limited service role.

Ensuring procedural fairness is the key to conducting investigations that are “appropriate in the circumstances” as prescribed by s. 32.07 (1) (a) of the Occupational Health and Safety Act R.S.O. 1990 c. O.1

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”.

What is the Difference Between Facilitation and Mediation?

John Curtis, .

What’s the difference between facilitation and mediation? They are both means to an end – but the journey to get there is different. While the terms are often used interchangeably, there are clear differences between these two alternative dispute resolution techniques and clear instances in which one or the other is better suited for the job. But because workplace conflict does not always follow straight lines, it can be helpful to create an approach that combines the best of both mediation and facilitation.

More About Confidentiality

John Curtis, .

When you are ill or hurt, you talk about your concerns and symptoms with the understanding that your health care providers can’t go back home and tell their dinner party guests all about your issues. When you go to a lawyer, you need to have the opportunity to discuss strategy and details without fear of disclosure. If you go to confession, you need to know your spiritual leader isn’t writing a book about your exploits. Confidentiality is the cornerstone of many relationships, and it is also essential for a mediator.

There are two branches of confidentiality in mediation:

What Happens When a Mediation Agreement is Broken?

John Curtis, .

People choose mediation because it is a voluntary (in most cases), nonbinding process that does not affect their ability to pursue further legal action. These are important benefits of mediation, but they can also pose a concern. What if the parties do come to an agreement as a result of the mediation and one party does not hold up their end of the bargain? Does a mediation agreement amount to a “gentlemen’s agreement” or is it a legal contract?

It depends. I know we all hate that answer; what it lacks in clarity it makes up for in ambiguity. Here are some possibilities, though:

Going to Mediation: Who Decides?

John Curtis, .

Mediation is a voluntary process; sometimes, though, “voluntary” can get a little murky if employers are “strongly recommending” mediation or, in fact, requiring it before other steps can be taken. Ontario, after all, does have “mandatory mediation.” So the question of who decides whether or not a specific issue goes to mediation is not a one-word answer. It could be up to any number of people: to the parties themselves, to the HR staff or to the liaison officer. It could be dependent on policies, or it may not even be mentioned as an option under company policy.  The important thing is that all parties recognize that mediation is an option. More important than “who” decides is “when” it happens or gets suggested.

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