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TRANSCRIPT
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
• contradictory evidence emerges
When to Re-Interview Parties
• take notes
• handwritten or laptop
• verbatim (if possible)
• first person
Note Taking During Interviews
• provide witness opportunity to review
• corrections in margins
• sign off on statements
• keep interview notes
Note Taking During Interviews
• emails
• texts
• phone records
• audio/video tapes
• relevant policies
Other Sources of Evidence
• grid
• timeline
• chronology
• binder
Keeping Track of the Evidence
Evaluating the Evidence
• balance of probabilities
• 50 + 1
• more serious the allegation, more proof required
Standard of Proof Required
• corroborating evidence
• consistency in telling evidence
• inconsistencies in story
• evidence believable
• opportunity to observe things
• personal interest in outcome
Credibility of Witnesses
• admission
• direct evidence
• indirect evidence
• physical evidence
• hearsay
• similar fact evidence
• character evidence
Type and Quality of Evidence
Findings and Report Writing
• nature of complaint
• mandate
• process used (including witnesses and documents)
• policies relied on
• list of allegations
Content of a Report
• credibility assessment
• summary of fact linked to allegations
• finding on each allegation
• whether of policy
• conclusion
• recommendations (maybe)
Content of a Report
• simple language
• headings and bullets
• neutral tone
Tips to Writing a Report
• no harassment
• harassment
• no harassment but inappropriate conduct
• insufficient evidence to make finding
Findings
Conclusion of Investigation
• discipline
• individual sensitivity training
• group training
• apology (respondent and/or organization)
Possible Consequences of Finding
• outcome of the investigation i.e. findings
• typically do not provide copy of the report
• summary of the findings
• remind re: confidentiality
• thank you for your participation
• right to be free from retaliation
What to Tell the Complainant/Respondent
• training
• team building activities
• re-iterate commitment to respect in the workplace
Repair Strained Team Relations
For more information regarding
Workplace Investigations, please contact:
Krista Siedlak Employment Lawyer & Workplace Trainer
@
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