Posts Tagged ‘harassment’

Where’s the report?

John Curtis, .

It happens all the time.

I get to the end of an investigation and provide my findings. The client reads it over, thinks about it, and decides what to do. Sometimes there is disciplinary action taken on the basis of our findings.

That’s when I get the call from an unhappy participant.

“I want to see the report.”

Or sometimes: “You told me I’d get to see the report.” (No, I didn’t)

There’s a natural human curiosity there. Or maybe a desire for payback. Whatever the case may be, let me explain why the full investigative report is not shared with anyone besides my client (the employer).

I’ll start by saying every Complainant and Respondent has a right to know the result of the investigation. This information is required to be provided by the employer under the Occupational Health and Safety Act, s. 32.0.6(2) (e).

More particularly, the employer is required to inform the Complaint and Respondent of results of the investigation in writing, as well as informing them if any corrective action has or will take place as a result of the investigation’s findings (Occupational Health and Safety Act, s. 32.0.7(1)(b).) The Ministry of Labour’s Code of Practice states the results and any corrective action must be communicated to the employee alleging harassment within 10 days of the conclusion investigation.

This requirement to “be informed of the results” has been widely interpreted to mean that the employer must provide some kind of summary of the findings in writing but not the entire report. Although legislation only requires workers to be informed in writing, ideally the employer would have a conversation with the employee(s) to discuss results and follow up that conversation with a written summary. That summary will usually involve identifying each allegation with a statement like, “This allegation was about rude comments made by X to Y about incident A, while in a meeting in X’s office on April 12, 2020.”

Then there would be a statement like, “The investigator found that X did say to Y “You are a %$#@!” and that this was part of a pattern of conduct that constituted harassment under the employer’s Respect in the Workplace Policy and under the Occupational Health and Safety Act.” This is the part of the report that gets shared more broadly.

Why stop there? Well, providing the full report could breach the confidentiality requirements of both the Act and the employer’s policies. Generally, workplace investigation results are only shared with those who are on a need-to-know basis: those directly affected or in a management role who will be involved in decisions to be taken post-investigation. There also might be relevant workplace policies or collective agreement clauses in unionized workplaces that prevent disclosure. That’s why it’s typically up to the employer to decide what to tell those involved in the investigation.

Sometimes, the employer decides on a limited release of the report. Other times, the full report pops up in court proceedings if it was relied upon as grounds for dismissal. Generally, most of the report remains internal to the employer.

Short of pursuing litigation, there is mixed case law around who is entitled to a copy of the full investigation reports and how far confidentiality extends especially in unionized settings and in the context of grieving discipline that resulted from an investigation finding. It seems an employer’s best chances for keeping full investigation reports internal are carefully drafted policies and/or collective agreement provisions that stipulate exactly what a party to an investigation is entitled to receive at the conclusion of an investigation. This protects both the employer and the employee from private information being unnecessarily shared.

Federally regulated employers and employees

For federally regulated employers and employees participating in an investigation process, there are somewhat different considerations regarding the amount of detail shared with parties and the overall confidentiality of investigation reports. For example, investigations that take place under the Canada Labour Code regulations (Work Place Harassment and Violence Prevention Regulations) are subject to the Access to Information Act and the Privacy Act.

This means that although workplace investigations are treated as non-public, there is a possibility that those who participate in the investigation could access the investigation file to obtain information that relates to them through an Access to Information and Privacy (ATIP) request. For more information on whether information from an investigation can be accessed and how to do so, see the federal government’s website.

The same is true of municipal and provincial governments but, generally, requests for information under privacy legislation do not entitle applicants to any full report they may request. Even if something is produced, it will likely be highly redacted.

There are also some differences in what must be included in an “investigator’s report” for federally regulated employees and with whom it must be shared. For these workplaces, an employer must provide a copy of the investigator’s report to the Complainant, the Respondent, the workplace committee or health and safety representative, and, if specified, the person designated to handle workplace harassment and violence complaints.

However, even within investigations that occur under this highly regulated scheme, the expectation is still that only a portion of the investigator’s findings will be shared with the principal parties. An employer is required to share the investigator’s general description of the occurrence: their conclusions, including those related to the circumstances in the workplace that contributed to the occurrence, and their recommendations to eliminate or minimize the risk of a similar occurrence (s. 30(3) of Regulations). This version of the “report” will be quite vague as it cannot reveal, directly or indirectly, the identities of the persons involved.

Under this federal scheme, the expectation is the same: only the employer is entitled to receive a full report of a workplace investigator’s findings subject to the same considerations of litigation, grievance processes, and Access to Information requests as mentioned above.

Not exactly Hemingway

It’s worth noting that the full report is…generally pretty boring. Most of the report is spent demonstrating the reasoning leading to our findings of fact. It is like the part of a high school math problem where you must “show your work” to arrive at the answer.

In law, just like in math class, how you got the answer is just as important as the answer itself. In an investigation context, showing one’s work proves that the investigator actually did the work to come to the answers in an objective way. Think of it as proving you were not copying the answers from the person sitting next to you in math class. A good report has to show the intellectual work the investigators did to make the findings and draw the conclusions they made.

So, since you can’t see it, what does this part of an investigation report look like? If you must know how the sausage is made:

  • the report compares the similarity of evidence given by different participants in the investigation
  • it compares the verbal evidence with related documents like emails or texts
  • it weighs the internal consistency of a person’s evidence (ie. did they contradict themselves)
  • it looks at photographs and phone records, and considers the relation of all this data to the allegations

It is detail-oriented work. It’s hard work writing this part of a report, and it’s likely no fun to read although we do try to make it compelling. It’s mostly lawyers writing for other lawyers, and not exactly scintillating stuff for a non-lawyer audience!

So, the next time you wonder why the report isn’t available for you to peruse – whether out of curiosity or as a sleep aid – now you know.