Workplace Investigations
WHAT YOU NEED TO KNOW AS AN EMPLOYER.
According to the 2017 publication by Harassment and Sexual Violence in the Workplace – Public Consultation: What We Heard (Employment and Social Development Canada) 60% of workers have experienced harassment at the workplace, 30% sexual harassment and 21% experiencing workplace violence.
75% of workers who had experienced any of the above only reported the most recent incident and 41% said no attempt was made to resolve the issue.
Given the above statistics it is safe to say that most companies have had their share of issues and you are not alone in that regard. What will set you apart as a company is how you choose to manage these problems when they arise. There are financial and reputational impacts on employers who do not take complaints seriously and /or investigate, where appropriate.
Individuals (sole proprietor) can face a fine of no more than $100,000.00; a prison term of not more than 12 months, or both.
Corporations could face a maximum fine of $1,500,000.00 upon conviction.
The consequences of not conducting an appropriate investigation are palpable.
Under the OHSA, if an employer becomes aware of an instance of harassment (or the potential for harassment), they are required to conduct an “appropriate” investigation into the allegation brought to their attention by either the supervisor or the Complainant employee. However, employers are also required to conduct investigations (or at minimum, preliminary inquiries, into allegations) stemming from anonymous complaints.
Further, it is important for employers to appreciate that the OHSA provides authority to workplace inspectors under s. 55.3(1) to order employers to hire an impartial investigator to investigate, at their own cost.
Prior to commencing an investigation, there are several considerations to contemplate before proceeding such as: have allegations been raised that could amount to a prima facie case, if true? Should the Respondent remain in the workplace during the investigation, be re-located or placed on an administrative leave pending the investigation? What steps need to be taken to preserve the integrity of the investigation such as, ensuring confidentiality is maintained throughout the process? Who is best qualified to investigate the complaint? Would a third-party investigator be the most effective option to investigate the complaint in the circumstances? Is there a need to maintain privilege?
By hiring a third- party investigation company you bring into the investigation a higher level of investigatory competency and neutrality. By doing so you are bring on board a individual that has specific experience in dealing with workplace investigations and understands the process required to satisfy an adjudicator or judge’s higher standard of needs than an employee that may have gone through a one-day training seminar. Involving a third-party will also bring with it the degree of thoroughness required to keep the investigation defensible should it become a litigation action against the employer.
An internal investigator may also not appear as impartial if it is a senior member of the organization being investigated. Not only that, but also another consideration is the internal investigator still must work with the respondents in the future and this may cause certain animosities in the workplace.
Investigations should follow Natural Justice and Procedural Fairness.
Procedural Fairness is a concept in law that is concerned with the process relied upon to come to a decision as opposed to the correctness of the decision. Procedural Fairness requires the decision-maker to follow a fair and proper process to arrive at their decision. The fundamental basis of natural justice is predicated on the underlying belief that the substance of a decision is more likely to be fair if the procedures through which that decision was made were just.
The relevant principles of Natural Justice include: the right to adequate notice, the right to be heard, and the right to an impartial decision-maker free from bias.
How does this impact your decision to choose an external investigator?
It can’t be stressed enough that conducting a credible workplace investigation requires strict adherence to the processes outlined in the governing legislation (the OHSA or the Human Rights Code). A thorough yet impartial investigation is the cornerstone of developing a credible and defensible investigation. An experienced investigation team is a key strategy in successfully managing your business. Relying on an external investigator will preserve your integrity and reputation by overcoming the appearance of bias.
