Uncomplicating Your Complicated Workplace Investigation

In these lingering weeks of summer, when hopefully work is a little slower and there is time for office clean up, it’s a good opportunity to reflect on whether or not your workplace policies need some tweaking. Let’s consider your harassment policy.

As a lawyer who does a lot of workplace investigations, the first thing that I do before commencing an investigation is review the employer’s harassment policy. Every employer has a different policy and I want to make sure that I’m following it.

While I don’t know the history behind certain clauses, or know the reasons why certain language is included, I can foresee that an investigation can quickly become more complicated because of the wording of the harassment policy. Let’s review a couple of those complications.

Time Limits

Time limits are one of the biggest obstacles that I see in harassment policies. Many times, they are inflexible and unrealistic for anything but a very simple, and internal, investigation.

Here are a few of my observations:

• can the investigator really meet with both a complainant and a respondent within the 10 or 15 day stipulated time frame after receiving the complaint? What about vacations, illnesses, pregnancy and parental leaves, or work shift scheduled beyond the traditional Monday to Friday day shift? Is your investigator meeting with employees during evenings, on weekends, or at locations other than the workplace and will this impact on the time limits? Do you have to arrange for an interpreter for the person with whom the investigator is meeting?
• is it physically doable? For those of you who have multiple locations across Ontario and/or Canada, is your investigator physically able to complete the investigation within the time frame? Do they have to travel, by car or airplane, to different locations to meet with employees, or are the employees coming to meet them in one central location? Will winter weather impact how and when those meetings can occur?
• is it possible for an investigator to meet with the parties, witnesses and write a final report on a complex matter within 15 or 20 business days? Is that time inclusive of providing a draft report to the parties, giving them the opportunity to respond, and then finalizing the report?
• do the parties or the union have to consent to an extension of the time limits? Is this mandatory? What happens if consent is not provided?
• is the type of investigation report mandated in your policy? For example, policies that require that all of the evidence from each person on each issue be set out in the report result not just in longer reports, but take longer to write. Will this impact on the time limit deadline?

Investigation Evidence

Some harassment policies specify the information and/or evidence to which parties and witnesses are entitled to review before the investigation proceeds, which is different from than giving a party the opportunity to respond to relevant evidence and documentation. In my experience, this can include:

• providing detailed allegations to a respondent in advance of meeting with the respondent. Does the policy require the complainant to review the allegations drafted by the investigator before they are provided to the respondent? What happens if the complainant doesn’t like how the allegations are phrased or doesn’t respond when the allegations are sent? How does this impact on the policy’s time limits?
• having the parties and witnesses review all of the evidence that precedes their interview, including witness statements of those previously interviewed and all documents that have been provided. Does this impact on the credibility of the person being interviewed and/or undermine principles of confidentiality? Do the parties get an opportunity at the end of the investigation to review all the investigation evidence before a report is prepared?

Draft reports

There are benefits and disadvantages to sending draft reports to the parties before the investigation report is finalized. If your policy gives the parties an opportunity to comment on draft reports, consider:

• does your language specify what a party is able to comment on? For example, are their submissions limited to the accuracy of the facts and evidence as it relates to them, or can they comment on anything, including challenging the conclusions reached by the investigator? Do the parties get the opportunity to review the submissions made by the other party?
• what is the time frame within which the parties are to provide their submissions? Does that impact on the time frame deadline by which the investigation is to be completed?
• is information about witnesses, including their identification and their evidence, included in the draft report, or is that information redacted?
• does anyone other than the parties have the opportunity to review a draft report?

Take aways

Periodically, harassment policies should be reviewed to make sure that they are current and don’t undermine the investigator’s efforts to conduct a fast and efficient investigation.