Insights & Articles
Harassment Investigations Can Be Both Expeditious and Fair
Organizations which are confronted with complaints of sexual harassment, discrimination or workplace bullying face a dilemma.
They are required to conduct a thorough and unbiased investigation in order to determine whether the reported conduct amounts to a violation of their policies or the applicable workplace legislation. Harassment investigations must conform to principles of procedural fairness laid down by the Courts, arbitrators, and administrative tribunals. Both the complainant(s) and the worker(s) who is accused of wrongdoing must be satisfied that the matter has been investigated thoroughly and objectively. The employer must receive an investigation report which clearly articulates findings and the reasons for those findings in order to inform a management decision as to further action.
On the other hand, workplace investigations distract from the business objectives of any company or non-profit organization. When numerous staff members are interviewed as witnesses, the investigation may become the subject of internal attention despite strict confidentiality measures. The last thing needed by an employer under today’s difficult conditions is an investigation which is delayed in getting underway and protracted in length.
Fortunately, workplace investigations do not need to be a long-term ordeal. An investigator ought to be available and willing to meet with the employer, determine the scope of the investigation and notify the affected parties, immediately after a complaint is received. Earlier this month we completed a sexual harassment investigation for a manufacturer in the GTA in the space of six days between our engagement and delivery of a written report explaining our findings. That investigation involved outlining the specific allegations in writing to the respondent and interviewing some seven witnesses in the days which followed.
Harrassment Investigations During COVID-19 Pandemic
During the current pandemic restrictions, we are conducting most investigation interviews via videoconference using the Zoom platform. That method has been effective and we expect to maintain the practice after such restrictions are lifted. Videoconferencing also has the advantage of reducing the costs of the investigation, particularly in out-of-town cases. We have found that questioning witnesses by video link do not limit or impair our ability to make difficult findings of credibility when it is necessary to do so.
An employer in these circumstances must be confident that the process which it follows in response to a complaint of workplace misconduct is fair and respectful toward those affected. An investigation process can meet that objective while being started quickly and completed expeditiously.
This article was written by Lawyer John McNair.