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  • Krista Siedlak

    Protect Yourself: Conducting Legally Defensible Workplace Investigations

  • Why Investigations are Important

  • Importance of Investigating Morgan v. Herman Miller Canada

    Facts:

    • Morgan alleged discrimination based on race

    o Assigned menial tasks

    oWork outside business hours

    o Email with racist overtones

    o Unfairly put on probation

    • Herman Miller did not investigate

    • terminated Morgan

  • Importance of Investigating

    Held:

    • no discriminatory treatment

    • failed to investigate discrimination

    • termination act of reprisal for complaint

    • total of $77,799 in lost wages and injury to dignity, feelings self-respect

  • Conducting Proper Investigations

    Chavalo v. Toronto Police Services

    Facts:

    • Chuvalo filed harassment complaint re: supervisor

    • alleged nine incidents of sexual harassment

    • supervisor brought four counter complaints including insubordination

    • first time investigator assigned

  • Conducting Proper Investigations • found “he said/she said”

    • no harassment finding on complaint

    • Chuvalo could not use allegations as defence

    • recommended termination

  • Conducting Proper Investigations Held:

    • sexual harassment was found

    • termination was reprisal

    • investigation was flawed

    • awarded additional damages

    • ordered to retain expert to train on investigations

  • Refresher on the Law

  • Overview

    The Law

    Ontario Human Rights Code

    Discriminatory Harassment

    Occupational Health and Safety Act

    Workplace Harassment

    Workplace Violence

    Domestic Violence

  • OHRC: Discriminatory Harassment

    course of

    vexatious conduct or comment

    related to a protected ground

    in a workplace

    knew or unwelcome

    ought to have known unwelcome

  • Grounds of Discrimination

    • age • ethnic origin

    • disability • citizenship

    • religion • place or origin

    • sex • family status

    • sexual orientation • marital status

    • race • gender identity

    • color • gender expression

    • ancestry • record of offences

  • • comments or actions based on a protected ground that make employee uncomfortable

    • need not be directed at employee

    Poisoned Work Environment

  • OHSA: Workplace Harassment

    course of vexatious

    conduct or comment

    against a worker in a workplace

    knew or unwelcome

    ought to have known

    unwelcome

  • a course of …

    • a pattern of behavior

    • a single serious incident may be offensive enough

    • examine nature of the conduct

    Test for Harassment

  • Test for Harassment

    vexatious conduct or comment …

    • abusive

    • insulting

    • threatening

    • humiliating

    • demeaning; or

    • result in discomfort

  • against a worker in workplace …

    • worker means FT, PT, contractors, consultants or volunteers

    • workplace definition under MOL vs. OHRC

    Test for Harassment

  • unwelcome …

    • perpetrator knew behaviour unwelcome

    • reasonable person would know behavior unwelcome

    • perspective of person who is being harassed

    Test for Harassment

  • consent vs. welcome

    • even if consent, doesn’t mean welcome

    • behavior can change from welcome to unwelcome

    • silence does not mean welcome

    Test for Harassment

  • Workplace Violence

    exercise of, attempt to exercise, or threat to

    exercise

    physical force

    by a person

    against worker

    in a workplace

    that could cause harm or physical injury

  • “...widely understood to be a pattern of behaviour used by one person to gain power and control over another person with whom he/she has or has had an intimate relationship. This pattern of behaviour may include physical violence, sexual, emotional, and psychological intimidation, verbal abuse, stalking, and using electronic devices to harass and control.”

    Ministry of Labour

    Domestic Violence

  • Understanding Bullying

  • • physical

    • verbal

    • non-verbal

    • psychological

    • social

    • cyber

    • supervisory

    Types of Bullying

  • • it is often about control and power

    • another form of abuse

    • bullying escalates if unchecked

    • not as simple as bully and victim

    • bully can be victim and vice versa

    Psychology of Bullying

  • Dynamics of Bullying

    Bully

    Active Participant

    Participant

    Passive Participant

    Supporter

    Victim

  • Mechanics of Investigation

  • • procedural fairness

    • due process

    Overarching Principles

  • • timing is of the essence

    • don’t rush at the sacrifice of process

    • plan before react

    Timing

  • • formal written complaint

    • verbal complaint

    • employee concerns

    Complaint Received

  • When

    Advantages

    Disadvantages

    • less serious issues

    • single incident

    • clear issues

    • less expensive

    • generally faster

    • less disruptive

    • hard to remain neutral

    • time commitment

    • appearance of

    neutrality

    Appoint Internal vs. External Investigator

  • • single verses team investigations

    • trained in law and due process

    • not discipline respondent in past

    • cross-investigate, if possible

    Selection of Internal Investigator

  • External Investigator

    When Advantages Disadvantages

    • more serious allegations

    • multiple incidents • upper management or

    HR politics at play • police involved

    • neutral (or perceived neutral)

    • “buy-in” from parties expertise in area

    • more costly • may take longer

  • • well trained on law re: harassment and bullying

    • understands notion of procedural fairness

    • appreciates psychological aspects

    • experience on complex issues

    Selection of External Investigator

  • • neutral (unbiased)

    • credible

    • good listener

    • empathetic

    Attributes of a Successful Investigator

  • • finding of fact

    • finding of fact and law

    Mandate of Investigator

  • • advise complainant/respondent

    • identity of investigator

    • outline process that will be followed

    • provide any required timelines

    • notify of next steps

    Notify the Parties

  • • respondent receives copy of complaint or summary

    of allegations • complainant provided with respondent response (if applicable)

    Particulars provided to Parties

  • • continue to work together

    • separate the parties

    • paid leave of absence with pay

    Options for Parties during Investigation

  • • who

    • what

    • when

    • where

    • how

    Create Investigation Plan

  • • complainant/respondent interviews separate days (if possible)

    • allow sufficient time between interviews

    • neutral, private interview location

    Logistics of Interviews

  • • support person, if not witness

    • union representative

    • lawyer

    Role of other Parties during Interview

  • Suggested Order of Interviews

    complainant

    respondent

    witness

    follow-up interviews

    (as necessary)

  • • opening statement

    • background information

    • relationship with parties

    • the story

    • allegations one by one

    The Interview

  • • identify potential witnesses

    • resolution seeking

    • confidentiality obligations

    The Interview

  • • background questions

    • open-ended questions

    • follow-up questions

    • cross-examination type questions

    Types of Questions

  • • new allegations raised

    • new evidence emerges after initial interview

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