how to conduct a bullet proof harassment investigation
DESCRIPTION
TRANSCRIPT
slide | 2
Overview of Presentation
● When and why is an investigation necessary?
● What kind of investigation is required? When can you doit yourself? When should you hire someone else?
● How to investigate? What are the proceduralrequirements?
● How should you document it?
slide | 3
When and Why Investigate?
● Courts, arbitrators and tribunals recognize that allegedharassment or serious misconduct have significantimpact on an employee and that employees have a rightto hear and to respond to allegations against them beforea decision is made that will have significant impact ontheir employment.
● Adjudicators impose an obligation on the employer toconduct a fair and effective workplace investigation.
● There is potential liability if an employer either fails toconduct a workplace investigation or botches theinvestigation.
slide | 4
On Receiving the Complaint
● Treat the complaint seriously and promptly.
● Solicit additional details, if required, to ensure youunderstand the complaint.
● Consider whether or not to proceed if the complainantrefuses to participate.
● Defuse workplace tensions pending investigation.
● Recommend EAP.
● Review the applicable policy and any applicablecollective agreement to ensure compliance.
slide | 5
What Kind of Investigation?
● What are the allegations?
● Can they be addressed informally through a meeting ormediation or is an investigation required?
slide | 6
Who Should Investigate?
● Internal vs. External
● Consider need for
● neutrality
● competency
● prompt response
● privilege
slide | 7
Notify the Respondent
● Identify complaint received and how it will be investigatedand by whom.
● Caution against any interference with investigation,including conversations with potential witnesses. Put thisin writing to ensure no misunderstanding.
● Address questions as to representation: is thereentitlement under a collective agreement or the policy?
slide | 8
Develop the Procedural Script
● Complaint filed.
● Authority for investigation.
● Allegations taken seriously, full cooperation expected andrequired.
● Outline process for collective evidence.
● Deal with recording and/or representation issues.
● Cover importance of confidentiality, respect for integrity ofthe process, no reprisals.
● Warn as to consequences of interference or retaliation.
● Address timeline and temporary measures, if any.
slide | 9
Develop the Substantive Script
● Formulate the list of questions.
● Start general and move to specific.
● Ensure all material allegations are covered with sufficientparticularity.
slide | 10
Interview the Respondent and Witnesses
● Inquire with respect to all material allegations, withparticulars, but do not provide the complaint itself, if thereare items extraneous to the investigation.
● Encourage any questions or clarifications.
● Document the response at the time, secure a witnessstatement that is signed and dated; address concerns forcorrections / changing evidence vs. clarifications.
● Inquire as to witnesses.
● Repeat warnings regarding confidentiality and non-interference.
slide | 11
Follow up, if required, with complainant
● Deal with allegations and/or explanations provided by therespondent and any witnesses.
● Do NOT reach any conclusions until the investigation iscompleted.
slide | 12
Draft the Report
● Two parts: evidence and conclusions.
● Apply appropriate standard of proof.
● Document findings on credibility and reasons for them.Make sure conclusions are supported by the evidence.
● Do not fail to reach conclusions.
● Should recommendations - a third part - be included?
slide | 13
How to Document?
● Implement the report or have a very good, documentedrationale why not.
● Achieve closure - advise both complainant andrespondent of the outcome.
● Consider how to respond to requests to produce thereport.
© 2011 CASSELS BROCK & BLACKWELL LLP.
CASSELS BROCK AND THE CB LOGO ARE REGISTERED TRADE-MARKS OF CASSELS BROCK & BLACKWELL LLP.
ALL RIGHTS RESERVED.