A Finding on Every Allegation
November 7, 2022
A workplace harassment investigation report should make a finding on every allegation.
Sounds straightforward, doesn’t it? And yet missing findings are an all too common error. Occasionally an issue is simply missed or overlooked. But often, this happens because the investigator claims that it’s unnecessary to make a finding. For example, even if substantiated, the allegation couldn’t amount to harassment anyway so there’s no need to decide. Or harassment will be found regardless based on other allegations, so there’s nothing to be gained by addressing this one.
I suspect that lurking beneath the protestation that a finding is unnecessary is an investigator who’s not confident enough to make one.
Why must we make a finding on every allegation? Every single one? Here are a few reasons:
- Management needs the full picture: we can’t make the best decisions about how to resolve a conflict unless we have a complete picture of what happened between the parties
- It matters to the parties: Employees in conflict deserve to feel like their issues were taken seriously. It can undermine resolution for someone to hear, “we didn’t bother making findings on this issue,” if the issue matters to them.
- It could change the outcome: Maybe an allegation, even if substantiated, would not be harassment on its own. But harassment is a “course of conduct.” It can be a single, very serious incidents, but usually harassment is what happens when small behaviours build up over time. When we dismiss an allegation because it’s not serious enough to be harassment on its own, we risk missing real harassment that we’d be able to identify once all the “little things” are added up.
- It could change the remedy: Or maybe you can already prove harassment based on other allegations in the investigation, so it seems unnecessary to address this one. But whether this additional allegation is substantiated could still make the difference between responding to the harassment with a termination or only a suspension, or between a suspension and a warning. Again, unless we have the full picture, we can’t make the best decisions about appropriate responses.
- You risk liability: An employee could legitimately complain if part of their harassment complaint was never investigated.
This doesn’t mean that you have to investigate absolutely everything a complainant brings forward. The Occupational Health and Safety Act requires employers to do an investigation that is “appropriate in the circumstances.” In some circumstances, it might well be appropriate to exclude some allegations, for example because they are historical, or have already been investigated, or are better dealt with through a different process. But these decisions should be made at the start of the investigation when determining the mandate. Once a particular allegation has been added to the mandate, the investigator must follow through and reach a conclusion. They can’t just say, “I’ve decided it’s unnecessary to reach a conclusion because of my findings on other allegations,” or, worse, “I don’t know the answer.”
A related concern is when an investigator makes a finding on only part of an allegation. For example, say the complainant alleges the respondent yelled at them while making false accusations against them. It’s not enough to find, “the respondent’s accusations were true, so the complaint about false accusations is not substantiated.” We also have to make a finding about whether the respondent yelled or not. Both are part of the allegation, and both are important.
Remember that investigation findings are made on a balance of probabilities. That means you don’t have to be 100% certain to make a finding. You just have to be persuaded based on the evidence that the allegation is more likely than not to be true. Or you have to conclude the evidence is not strong enough to persuade you of this. Either way, we can and must make findings on every allegation in our investigations. Employees who are undergoing a difficult, stressful process to try to make their workplaces better deserve nothing less.