Investigations as an Evolving Area


Investigations as an Evolving Area

In the last decade, almost all jurisdictions in Canada have enacted health and safety legislation that requires employers to implement policies to address workplace bullying and harassment. This is significant as it treats psychological harm in a similar manner to other workplace safety issues. Further, it expands the concept of harassment beyond protected grounds (e.g. sex, race, etc., under human rights law), and recognizes there can be many forms of mistreatment, such as intimidation and humiliation, that must be addressed.

Most jurisdictions require that employers have a procedure for investigating complaints but do not specify what that procedure must be. Regardless, investigations must be procedurally fair, including giving the respondent a proper opportunity to respond. Investigations can be handled internally or externally.

Only the federal jurisdiction sets out specific qualifications for the investigator, calling for a “competent person” to investigate workplace violence. A “competent person” must be “impartial and seen by the parties to be impartial,” and must have relevant “knowledge, training and experience.”

Upcoming changes under Bill C-65, (date in force TBD), expressly call for a competent person investigator for violence and harassment. The federal government is developing a roster of investigators to assign as competent persons if the parties cannot agree on an investigator. Outside of the federal jurisdiction, there is no requirement for the parties to agree on the investigator. We have found however, that there is increased awareness and scrutiny of the selection by parties, including questions about background, neutrality, knowledge of trauma informed practices and unconscious bias, etc.

In many cases, employers will opt for a third-party investigator (“TPI”) to conduct the investigation, due to complexity, limited internal resources, and/or desire for an arm’s-length lens. We anticipate the scrutiny of impartiality will continue, thereby encouraging the use of TPIs. It is worth considering the value a TPI might offer a workplace, beyond meeting legal obligations.

Employers routinely ask investigators to make findings or fact and to determine if a respondent has breached policy, but may not ask for recommendations. This is a missed opportunity.

A workplace investigation is not an easy process for participants, yet we find they express appreciation for the opportunity to be heard, and are eager to share their broader perspectives on the workplace, including views on what may contribute to strain among colleagues, or between employees and managers. Conduct may not rise to the level of harassment, but that does not mean the workplace is not problematic or that relationships are repaired. Recommendations allow for insight gained by the TPI’s “fresh eyes” into workplace dynamics to be shared and actioned, even in absence of a finding of harassment.

There can be opportunities for mediation, facilitation, training and coaching, post-investigation, and a TPI can offer continuity and skill in this realm.

Investigators can also consider other means of dispute resolution mid-stream. For example, in a situation that included multiple parties and allegations of disrespectful conduct, the investigator’s preliminary assessment found evidence of personality conflicts, but no prima facie case of harassment. The investigator recommended a switch to a workplace assessment (“WA”), in which participants identified issues and potential improvements, and were asked to reflect on how they were contributing to the dynamics. This was followed by group sessions on communication and development of a code of conduct.

Proactive WA’s can help to head off investigations, where there are rumours but no specific complaints, or where there are tensions.

Objective investigations are critical to address harassment. They also provide an opportunity to learn more about the workplace, alongside a growing number of tools to address conflict.