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Workplace Investigations Conducting “Effective” Workplace Investigations Sarnia, ON March 05, 2015 Facilitated by: Anthony Folan Integral HR Solutions Inc. 1 WWW.INTEGRALHRSOLUTIONS.CA

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Page 1: Workplace Investigations Presentation

Workplace Investigations

Conducting “Effective”

Workplace Investigations

Sarnia, ON

March 05, 2015

Facilitated by:

Anthony Folan

Integral HR Solutions Inc.

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Page 2: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

High profile harassment suits dominated the

headlines last year and one labour lawyer

says the media coverage has made workers

more aware of their rights. Now, she says HR

managers must be extra vigilant to avoid risk.

“Obligation to investigate allegations of

harassment has existed for several years but

the CBC case brought it front and centre,”

says Norton Rose Fulbright lawyer, Sarah

Crossley.

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Page 3: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

“Employees are becoming more

knowledgeable about their rights and the

expectation for employers to understand the

law and to conduct a proper investigation

has reached a higher level,” she continued.

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Page 4: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

Of course most employers wouldn’t

intentionally ignore a serious allegation of

harassment but Crossley says even

organizations with the best intentions could

be putting themselves at risk if they’re not

adequately equipped to handle an

investigation.

“It’s important that employers treat all

complaints seriously and if they decide to

investigate, it needs to be effective and fair.”

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Page 5: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

“If you fail to investigate, if you do a shoddy

job or if you don’t get the right people to do

it, then there is a significant risk from a

financial liability perspective but there’s also a

reputational risk to employers,” she

continued.

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Page 6: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

Crossley says whoever is tasked with

investigating should have some formal

training as well as all the necessary tools for

the job. She added that they don’t always

have to be hired externally but internal

investigators can pose a number of problems.

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Page 7: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

“You might not want someone internal

handling a very senior person within the

organization or a very high profile person within

the organization,” explained Crossley. “It can

be difficult for someone internal to do an

investigation if there’s a power imbalance.”

Crossley also added that an investigation could

lose credibility if it was carried out by someone

who had had any past dealings with the

employees involved.

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Page 8: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

“What’s really important – whether they’re

internal or external – is that you have someone

who understands how to conduct a full and fair

investigation,” she said. “Because at the end of

the day, and at the end of the investigation,

some important decisions will have to be

made.”

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Page 9: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations - Agenda

Why Investigate?

Top 6 Investigation Pitfalls

Court Rulings

The Importance of Procedural Fairness

Failing to Document

Preparing a Final Report

Dealing with the Outcome of the

Investigation

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Page 10: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations

Value of fact-based decision vs. emotion-

based decision

Legal obligations and legal risks of not

investigating/not investigating effectively

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Page 11: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations

Legal obligations:

Workplace violence/harassment

legislation (Bill 168)

Human rights-based claims

Practical considerations:

Terminations for Just Cause

Company culture

Company standards

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Page 12: Workplace Investigations Presentation

Conducting Effective WorkplaceInvestigations

Simply conducting an investigation is

not enough

The investigation must also be done

properly

Overlooking the importance of

process can be a costly mistake

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Page 13: Workplace Investigations Presentation

The Importance of Process

Internal investigator?

External investigator?

Legal counsel present?

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Page 14: Workplace Investigations Presentation

Top 6 (Costly)Common Pitfalls

Failing to provide procedural fairness to the responding party

Using inexperienced or untrained investigators

Failing to remain neutral

Failing to properly document the investigation

Failing to make findings of fact at the conclusion of the investigation

Failing to investigate the “I don’t want to make an official complaint”

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Page 15: Workplace Investigations Presentation

Process & Proven Strategies

1. Complaints must be taken seriously and acted upon promptly.

2. The investigator should be independent and objective.

3. The investigator should be neutral.

4. The investigator should not be in a position of authority over any of the parties to the complaint.

5. The findings should be reported to someone with sufficient authority to enforce them.

6. Investigators must be knowledgeable about the law, the organization’s policy and complaint procedure, and understand the methods for conducting investigations.

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Page 16: Workplace Investigations Presentation

Process & Proven Strategies

7. The investigator should make and keep written notes of the

investigation and any report that is prepared or submitted.

8. Investigators should take steps to protect confidentiality to

the extent possible. Information should only be shared on a

need-to-know basis.

9. The investigation must be “impartial, timely, fair, and address

all relevant issues.”

10. The investigation report should summarize the allegations,

what steps were taken during the investigation and the

evidence gathered. The report should also contain findings on

each allegation.

11. Investigations should commence as quickly as possible and

finish in a timely fashion.

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Page 17: Workplace Investigations Presentation

Procedural Fairness: Case Study

Elgert v. Home Hardware Stores Ltd. Carswell Alta 1263 (Alta. C.A.)

17 year supervisory employee terminated following “alleged” sexual assault

Not advised of complaint or afforded opportunity to respond

“You know what you did!” (company response)

Awarded 24 months’ notice and $75,000 in punitive damages for faulty investigation

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Page 18: Workplace Investigations Presentation

Procedural Fairness: Case Study

From the Judge…

“Employers must take seriously allegations of sexual harassment… Its responsibilities do not give it license to conduct an inept or unfair investigation or behave in malicious, vindictive or outrageous ways…”

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Page 19: Workplace Investigations Presentation

Procedural Fairness

When conducting an interview…

Begin with general explanation of purpose

of meeting

Remind employee of reprisal rights

Discuss confidentiality:

Not entirely possible

Investigator will only disclose details as

necessary

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Page 20: Workplace Investigations Presentation

Procedural Fairness

Fundamentals of Procedural Fairness:

Advise respondent complaint has been

made

Advise respondent of particulars of

complaint (i.e. who, what, where, when…)

Afford respondent opportunity to respond

to each allegation

The goal of the investigation is NOT to

ambush the responding party

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Page 21: Workplace Investigations Presentation

“Untrained Investigators”

C.R. v. Schneider National Carriers Inc.

Employee accused of sexual harassment

Complainants lodged their complaints

together and were interviewed at the same

time

Identity of the complainants not revealed

Particulars of complaints not addressed

Interviews not documented

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Page 22: Workplace Investigations Presentation

“Untrained Investigators”

“They were inexperienced at dealing with the issues raised in this action and they also lacked the necessary training to do so. I readily acknowledge that the defendant’s

management team should not be required to match the standards or practices of criminal

investigators. However, basic fundamentals of fair play must be but were not observed and

for that reason, the results of the investigation are tainted.”

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Page 23: Workplace Investigations Presentation

“Untrained Investigators”

When selecting an investigator consider:

Investigation experience / training

Expertise regarding subject-matter of

investigation

Seriousness of the complaint

Time and resources

Internal vs. external investigators

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Page 24: Workplace Investigations Presentation

“Untrained Investigators”

Vernon v. B.C. Ministry of Housing and Social Development (2012)

30 year employee accused of bullying and harassment

Adversarial and confrontational “interrogation”

Investigator incorrectly reported evidence

Employee awarded $182,173 (18 months pay + aggravated damages + punitive damages)

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Page 25: Workplace Investigations Presentation

“Untrained Investigators”

“The interviews were not simple question and

answer affairs. They were interrogations. They

were not carried out in an impartial manner.

Witnesses who spoke favourably about Ms.

Vernon were accused of lying.”

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Page 26: Workplace Investigations Presentation

“Untrained Investigators”

An investigator should be:

Unbiased

Consistent with each employee being

interviewed

Neutral in their conduct and questions

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Page 27: Workplace Investigations Presentation

“Process”

DO:

Ask questions

Listen actively to the responsesprovided

Use follow-up questions

Restate information

Remain Neutral

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“Process”

Avoid missing key information

Cover the following issues:

Did it happen?

When did it happen?

Was conduct intentional?

Was conduct condoned?

Who witnessed it?

Is there an explanation?

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Page 29: Workplace Investigations Presentation

“Failing to Document”

Tong v. Home Depot of Canada Inc.

54 year-old sales associate terminated for cause on the basis of “time fraud”

Newly-hired floor manager appointed as investigator

Destroyed notes of investigation

Conclusions based solely on his own observations

Exaggerated evidence in report to management

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Page 30: Workplace Investigations Presentation

“Failing to Document”

“Regrettably, it appears that Mr. Macdonald…began with the firm belief that the plaintiff was the wrongdoer.

His investigation was fatally flawed.

He destroyed his original notes and presented only a summary prepared just prior to his meeting…which contained inaccurate exaggerations of the evidence.”

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Page 31: Workplace Investigations Presentation

“Failing to Document”

Interviewers should keep detailed notes

Why?

Refresh memory

Record of what was said

Proves you did a proper investigation

Provides context for making decision

Fairness, transparency and internalintegrity

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Page 32: Workplace Investigations Presentation

“Failing to Document”

Interviewers notes should:

Record who was interviewed, who was

present

Record where and when meeting

occurred

Record what was discussed

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Page 33: Workplace Investigations Presentation

“Final Report”

The investigator should keep in mind that the report not only provides the basis for the internal resolution of the complaint but is also the cornerstone of the employer’s evidence of due diligence in dealing with the allegations.

It is a confidential document and should be provided only to the ultimate decision-maker.

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Page 34: Workplace Investigations Presentation

“Final Report”

The report should include all allegations made by the complainant and the accused’s responses.

A brief summary of relevant evidence should be presented. It may be necessary to discuss issues of credibility.

Based on the evidence, the report should present conclusions as to whether each allegation is substantiated, unsubstantiated or partly substantiated.

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Page 35: Workplace Investigations Presentation

“Final Report”

Finally, the report should make recommendations for resolution of the complaint.

Factors affecting the severity of discipline should be addressed, such as the attitude of the harasser since the incident, his or her length of service or prior disciplinary record.

As well, this would be the place to raise broader systemic issues where it is found that a poisoned atmosphere prevails in the workplace.

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Page 36: Workplace Investigations Presentation

“Salient Points”

Key Question:

Is there convincing evidence that the

allegations against the respondent

are true?

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Page 37: Workplace Investigations Presentation

“Salient Points”

When answering this question…

Look carefully at each party’s story

Look at how each party answered questions

Fill in missing information (circle back over notes)

Look for corroboration

Is there other evidence (documentary, electronic, surveillance) that supports one side more than the other?

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Page 38: Workplace Investigations Presentation

“Salient Points”

Final Steps:

A decision must be made:

The complaint is either has merit or,

the complaint is unsubstantiated

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Page 39: Workplace Investigations Presentation

“Salient Points”

Company response will depend on the outcome of

the investigation

Think creatively about solutions that may restore

workplace balance

Respect privacy interests

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Page 40: Workplace Investigations Presentation

“Salient Points”

Non-Disciplinary Responses:

Coaching / Training

Apologies

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Page 41: Workplace Investigations Presentation

“Salient Points”

If discipline is warranted:

Investigation findings should be

adequately explained

Discipline should be:

Proportionate

Responsive to complaint

Legally compliant

Communicated in writing

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Page 42: Workplace Investigations Presentation

“Salient Points”

Termination of employment

Just Cause

will severance be offered on a gratuitous and

“without prejudice” basis?

Without Cause

what will the severance package look like?

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Page 43: Workplace Investigations Presentation

Concluding Remarks

Harassment complaints can be quite disruptive and divisive. An investigation can either make it worse or, if handled correctly, can actually have a healing effect and can help the parties move on with their lives.

From my experience, the most important considerations are to treat all parties fairly and with respect, to provide detailed information to the respondent, to be fully versed in the law and the impact of workplace harassment and to consider the outcome and remedy that best suits the particular circumstances involved.

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Page 44: Workplace Investigations Presentation

Concluding Remarks

If an investigator follows those steps, both

sides will be far less likely to litigate the matter

and there is a greater chance that it can be

resolved simply, quietly, and cost effectively!

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Page 45: Workplace Investigations Presentation

Workplace Harassment

Behaviour falls into 3 categories:

a) Acceptable

b) Inappropriate/Unacceptable

c) Harassing/Violent

How do we define the fine line between

unacceptable behaviour and harassment?

Notice………

Intent………

Direction………

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Page 46: Workplace Investigations Presentation

Workplace Violence

Integral HR Solutions defines "workplace violence" as:

(a) the exercise of physical force by a person against a worker in a workplace that causes, or could cause, physical injury to the worker; and/or

b) an attempt to exercise physical force against a worker in a workplace that could cause physical injury.

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Page 47: Workplace Investigations Presentation

Workplace Violence

"Workplace violence" means (c) a

statement or behaviour that is reasonable

for a worker to interpret as a threat to

exercise physical force against the

worker, in a workplace, that could cause

physical injury to a worker.

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Page 48: Workplace Investigations Presentation

Legislative Requirements - Bill 168

Under the Occupational Health & Safety Act, Bill 168

require employers to protect workers violence in the

workplace whether perpetrated by employees, clients,

or other individuals the employer serves (e.g.

contractors).

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Page 49: Workplace Investigations Presentation

Legislative Requirements - Bill 168

Bill 168 includes a number of duties that are triggered when an

employer has reason to believe that harassment or violence has

occurred or is likely to occur, including specific duties to:

• identify the source of the harassment or violence;

• ensure that further harassment or violence is prevented/stopped;

• where necessary, take steps to remove the source of the

harassment or violence from the workplace;

• ensure that "adequate steps" are taken to "remedy the effects of

the harassment or violence"; and

• contact law enforcement, where appropriate.

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Page 50: Workplace Investigations Presentation

Legislative Requirements - Bill 168

As noted above, Bill 168 creates specific and clear

obligations on employers to prevent, and respond to

workplace violence and harassment. For example,

employers must:

• ensure that every worker is protected from workplace

related harassment or violence; and

• develop, on a regular basis, compulsory harassment

and violence prevention training for employees and

managers.

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Page 51: Workplace Investigations Presentation

Supervisory Responsibilities

The prohibition against harassment extends

not only to the person conducting the

harassment but also to individuals who are in

a position to potentially prevent the

harassment from taking place. Accordingly,

the employer itself, or other employees may

be added as parties to a complaint

proceeding if it is determined that party knew

or should have known of the harassment in

question.

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Page 52: Workplace Investigations Presentation

Zero Tolerance

Workplace violence, harassment, and discrimination

in any form will not be tolerated. Any allegation of

workplace violence harassment and or discrimination

will be thoroughly investigated and treated as a

serious matter. Employees found to be in violation of

this policy will be subject to disciplinary action up to

and including termination of employment.

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Page 53: Workplace Investigations Presentation

Concluding Remarks

Questions…

Feedback…

Thank You…

Anthony S. Folan

Integral HR Solutions Inc.

GTA Office (905) 846-3390

Sarnia Office (226) 784-1466

Toll-free Number 1 (866) 908-1066

Mobile Number (416) 274-9693

[email protected]

www.integralhrsolutions.ca

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