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By: Amelia Phillip
In Ontario, an employer must ensure that an appropriate investigation is conducted into incidents or complaints of workplace harassment.
In this article, we outline the 5 key steps to take in a workplace investigation.
The 5 key steps in a workplace investigation are:
STEP 1: Have a Plan
When an incident of workplace harassment is reported, ensure you take the complaint seriously and ensure that the complainant knows it is being taken seriously. To that end, have a formal plan for how to address each complaint.
This plain should start with determining whether an investigation is necessary. Ask yourself, if the complaint is true, would the behaviour in question violate your workplace policies and/or the relevant legislation. If so, an investigation is likely required.
In planning an investigation, create a roadmap for the incident. That is:
- identify each and every allegation;
- keep track of the evidence for each and every allegation;
- identify what workplace policies are engaged by the complaint, keeping in mind that in Ontario employers are required to have a workplace harassment policy and are required to review that policy annually;
- identify the relevant legislation engaged (e.g., the Occupational Health and Safety Act, the Ontario Human Rights Code, the Criminal Code); and
- brainstorm what your next steps will be post-investigation.
You will also need to select an appropriate investigator. The investigator can be internal to the organization (e.g., a supervisor, a Human Resources manager , someone from corporate head office) or external (e.g., a licenced professional investigator, a lawyer). Whoever the investigator, they must be independent and neutral. They should have no involvement with the incident and should not report to the respondent/alleged harasser.
STEP 2: Inform the Parties and Consider Interim Measures
Inform the parties that an investigation is forthcoming and conduct that investigation without delay. It would be reasonable to complete an investigation into workplace harassment as soon as possible within 90 days or less unless there are compelling reasons why a longer investigation is needed (e.g., a key witness is unavailable due to illness).
It is also important to consider whether the parties need to be separated in the workplace until the conclusion of the investigation for the protection of one or both parties and/or to protect the investigative process. Such interim measures include, but are not limited to, moving one of the parties to another area of the building or an administrative suspension, with pay, for the respondent/alleged harasser.
STEP 3: Interview All Relevant Witnesses
As a part of the formal investigation, interview and/or re-interview, at minimum, the following witnesses:
- the complainant
- the respondent/alleged harasser
- co-worker witnesses
- other witnesses identified by the parties
During interviews, keep in mind the following best practices:
- keep detailed interview notes and document the process/show your work;
- keep a neutral tone and outlook as the investigation is conducted;
- maintain confidentiality – the investigation is to be kept confidential and all identifying information about the people involved is not to be disclosed, unless necessary.
STEP 4: Review all Relevant Documents
Make sure that relevant documents from the complainant, respondent, witnesses and the employer are collected and reviewed . Give the complainant an opportunity to reply to contradictory evidence and material that casts doubt on their complaint.
STEP 5: Report
Prepare a formal Report that discusses the process of the investigation and the evidence considered. The report should set out the conclusion drawn from the process and evidence. Recommendations for next steps may also be set out.
Inform the complainant and respondent in writing of the results of the investigation and any corrective action that will be taken.
What recommendations are best for next steps following an investigation is dependent on the particular circumstances of each and there is no one-size-fits-all solution.
Author - Extraordinary Damages in Canadian Employment Law