Workplace Investigations

Why Hire an External Workplace Investigator?

As an employer, it is stressful when you receive a complaint from a worker about breach of policy. You will have a number of considerations to weigh when figuring out how to proceed. In addition to deciding whether you need to take immediate steps to separate employees, or make changes in the workplace, one thing to consider is whether to hire an external investigator or handle the complaint internally. There are many situations where employers can and should handle their investigations internally. However, there are other times when it is prudent to seek out an external investigator. Here are a few factors you should consider when deciding who is best to investigate:

1. Who is involved?

It is important to consider who the complainant, respondent and potential witnesses will be and whether anyone within your organization can be unbiased and neutral. For example, if a party is a senior manager or a member of the HR department, it may be difficult for someone in the HR department to conduct a fair investigation and question their colleagues or superiors. Remember, it is key that the parties involved in any investigation feel like the process is neutral and fair to everyone involved.

2. How complicated are the issues?

Some complaints are very straightforward and involve issues that can be easily resolved by reviewing documents or speaking to a few witnesses. Other complaints involve multiple allegations that are nuanced and complicated. Many times, having a trauma-informed investigator who is trained to understand the impact that past trauma has on individuals and how to ask questions in a sensitive way is the only path to success. An inadequate internal investigation can create more problems than it solves.

3. Do you have time?

Conducting a workplace investigation takes time. If you decide to conduct it internally, that is time that is taken away from your important organizational priorities and goals. Having an external investigator take over will allow you to focus on what you need to do in order to keep your organization running.

4. How much will it cost?

Hiring an external investigator is costly, but it can also save resources and money internally by allowing a neural party to efficiently deal with the complaint. A good external investigator should be prepared to provide you with an estimate up front and be flexible in their approach. Every complaint is different and investigators will take those differences into account in determining their process. It is important to ask external investigators if they are comfortable finding other ways to resolve complaints outside of a report, like mediation or discussions. Sometimes, these results are much less costly then running a full investigation and paying for a report that is not helpful.

5. Should the investigation be privileged?

Confidentiality is a big consideration for most organizations in conducting investigations. By hiring an external investigator who is also a lawyer means that the investigation and the report can be covered by solicitor-client privilege and ensure confidentiality.

There are pros and cons to investigating internally vs hiring an external workplace investigator. If you are not sure which approach is right, call or email us and we are happy to discuss both options. To learn more about our approach to investigations, you can check out our investigations practice here, or contact us.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Human Rights, Workplace Harassment, Workplace Investigations

Four reasons to investigate a complaint – even if the employee has quit

We regularly are asked by our employer clients, if an employee makes a complaint and then quits, should we still investigate? Looking into complaints can be messy and stressful, so it is tempting to decide you are off the hook. What about if a complaint of harassment, bullying or discrimination is made by someone who has quit against someone who is still employed? Here are four reasons why the answer is yes, you need to investigate:

To uncover festering issues.

An investigation may uncover poor leadership, or a “bully” that has gone under the radar for some time. Consider the scenario where a young, short-term employee had handed in his resignation and a complaint about bullying by his supervisor. An investigation after he left unearthed issues with the supervisor that had been experienced by others for over 3 years, with no one coming forward. This supervisor had caused disengagement, lack of productivity and a string of resignations.

To comply with obligations under Health and Safety legislation.

There is an obligation for employers under the B.C Worker’s Compensation Act, to maintain a harassment-free workplace. The WorkSafe BC website has FAQ’s to explain how WorkSafe BC will handle a complaint of harassment and when they will contact the employer. In short, WorkSafe BC will ask an employer to investigate a concern, and WorkSafe BC will want to ensure that the employer has a harassment policy, and follows it.

To comply with obligations under the Canada Labour Code.

For federally-regulated organizations, under recent changes to the Canada Labour Code that came into effect January 1, 2021, there is a requirement to investigate concerns raised by former employees that are made known to the employer within three months after the day on which the former employee ceased to be an employee. The Minister may extend that time period if the former employee demonstrates that they were not able to bring the concern forward within that time frame because of trauma as a result of the occurrence or because of a medical condition.

To comply with obligations under Human Rights laws.

The Canadian Human Rights Tribunal issued a decision finding an employer liable for harassment experienced by former employee at the hands of a current employee. In Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18 (CanLII), the Tribunal considered harassing emails by an Aéropro employee, via his personal email address, to a former employee. The emails were highly offensive and full of hatred. One of the questions before the Tribunal was whether this constituted harassment “related to employment” considering it took place after the victim’s employment had ended. The Tribunal ruled there was enough connection to the workplace in the relationship, and that the email address used for the harassing emails, though personal, had been regularly used by the respondent employee for workplace matters. The Aéropro managers who were aware of the harassing emails were found to not have done enough to investigate the issue or prevent it. The company was found responsible for the harassment.

It is important to note that the Canadian Human Rights Act applies only to federally-regulated employers. Each province has its own human rights laws and the result of a case such as this one may vary depending on the text of the provincial legislation. It will be interesting to see if the decision in Duverger will be followed by provincial Tribunals.

What if the complaint is made by a current employee about a former employee?

You may still have an obligation to investigate a complaint about a former employee for many of the same reasons stated above. WorkSafe BC may require an investigation. However, you may be faced with these practical issues:

You can’t reach the former employee (respondent). If they refuse to speak to you about the complaint, there is not much you can do. Employment obligations mandating cooperation in an investigation no longer apply to a former employee. An investigation is not yet a legal proceeding for which the employer could use a subpoena. You may find yourself unable to conduct a full investigation, left only with the complainant’s side of the story, from which you would have to make decisions.

The complainant may end up dropping the complaint. Good news, right? Depending on the circumstances, the complainant may realize over time that once the respondent leaves the organization, things improve. I once investigated a concern by a complainant who kept bringing issues related to a former executive who was no longer with the organization. At the heart of her concerns was the need to be heard, and the need to ensure no one else would go through what she did. She was also very concerned that HR had not done enough at the relevant time. It was only when she felt that she had been heard that she agreed that the complaint was over.

The bottom line is that even if one of the employees involved in a complaint has quit, employers still need to look at the situation carefully as an investigation may be needed.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Workplace Investigations

Trauma-Informed Workplace Investigations – Five lessons from the trenches

In my years of experience as a workplace investigator in-house for a large organization and in my current role as an external investigator, I have learned some hard lessons on what not to do when conducting an investigation. At Forte Law, a trauma-informed approach is not a nice-to-have, but a must have, and this can very easily be lost by a busy investigator under pressure to get an investigation done as soon as possible. Here are 5 traps to avoid so you can maintain a trauma-informed workplace investigation:

Do not send a cold email on a Friday, to interview a party after the weekend. This may seem obvious, but when you are looking at your remaining to-do list, it is an easy trap to fall in. You will be causing a great deal of unnecessary anxiety. The recipient will be wondering and filling in the blanks throughout the weekend, and likely come to the interview stressed and triggered. Being trauma-informed means providing the parties with control over what is possible. The time and date of when to meet can be one of those things. Pick up the phone, introduce yourself (or ensure the proper party within the organization has introduced you in advance), and discuss times to meet that are comfortable to the person you will be interviewing.
Do not come into the interview scattered or upset. Check in with yourself before each interview meeting. Are you calm? Are you angry about something else? Will you be able to be fully present? Have you made up your mind based on the facts you available to you so far, that the person you will be speaking to is unlikeable? Take a moment to meditate and to connect with the emotions in your body. Make sure you are able to remain objective during the interview. You may be triggered by things mentioned during the interview. Will you have the ability to not react? Learning how to place distance between triggers and your reaction takes practice. So, practice, practice, practice. Your brain can create new connections and works like a muscle. It needs to be trained!
Do not let the person you are interviewing quit during the meeting. If the person you are interviewing is so upset that they decide to communicate to you that they are resigning, make sure to ask them to think about it carefully, to not rush, and acknowledge the difficulty they are experiencing. Depending on your role (as either an external or an internal investigator), you may not be in a position to accept the resignation anyways, and there are legal consequences to accepting a decision to resign that was evidently made in the “heat of the moment.”
Don’t forget to manage expectations from the beginning. It is surprising what people expect out of making a complaint. There is the misconception that raising a concern should automatically lead to the complainant’s version of events to be believed, that it should lead to the respondent’s termination of employment within a couple of days, and that there will be monetary compensation to the complainant for their negative experience. Respondents sometimes also believe that if there is no consequence for them or their version of events is preferred over that of the complainant, that this automatically means that the complainant brought the concern in bad faith, lied and should be terminated. Outlining to each party the possible outcomes and the privacy restrictions associated with fully disclosing the details of any disciplinary consequence, is very important. An investigation typically results in a “winning” and a “losing” party. Someone is not going to be happy with the outcome. Managing expectations will assist in allowing the parties to move on once the process is over and will diminish the likelihood of litigation.
Don’t forget your terms of reference, or what your mandate is. You can be kind and compassionate yet know your role. As an investigator, you may create the type of bond with the parties that lead them to believe you can resolve other issues they are facing in the workplace. It is important to be clear on the scope and the limitations of the investigation and refer the parties to the proper contacts for issues unrelated to the investigation.

Workplace Investigations

5 Tips for Successful Workplace Investigations

5 Tips for Successful Workplace Investigations

Workplace investigations happen in all types of workplaces. They can be very effective in dealing with conflict, but they can also get off track. With the recent news that the Governor General’s office has brought in a workplace investigator to look into claims of harassment in the workplace, here are some key strategic tips for successful workplace investigations.

Determine the scope and purpose of the investigation. Ensure that all parties are clear on the issues and allegations as well as the scope of the investigation, so there are no surprises. It is very common for new issues to come up during an investigation, so the employer should prepare for how to deal with those issues as they arise. Like other types of projects “scope creep” can result in delay and increased costs.

Choose an investigator. Depending on the purpose of the investigation, the employer may conduct its own internal investigation or may retain a specialized outside investigator. Outside investigators help to avoid bias, and lawyers can investigate and provide legal advice, which means the investigation and report can be privileged and confidential.

Ensure confidentiality and fairness throughout the process. Remind each participant and witness that confidentiality is crucial to an effective workplace investigation. Anyone accused of wrongdoing must be given a full opportunity to respond.

Consider mediation. While interviews are being conducted, sometimes it becomes clear that there is a way to resolve the conflict. A full investigation and report are not always necessary, and sometimes investigators can act as mediators to get everyone onto the same page.

After the investigation. All too often, an investigation happens, a report is written, but nothing more is communicated to the participants, especially the witnesses who were interviewed. While confidentiality must be maintained, it is also important to engage and communicate with those who were involved, so that they are not left hanging.

Ensuring an effective and fair investigation process is essential to protecting both the employer and employee. It is also important to keep in mind everyone in the workplace involved in the investigation, to ensure that there is not additional harm created.

Trauma-informed, Workplace Investigations

Five Tips for Conducting a Trauma Informed Interview

I learned a great deal about the importance of using a trauma informed approach to interviewing during my time as a Member of the Parole Board of Canada, interviewing offenders in what were often highly-charged and emotional hearings regarding their conditional release from prison. The goal of using a trauma informed approach is to avoid re-traumatizing (adding unnecessary stress or doing further damage) those being interviewed. A benefit of the approach is that you are likely to get better information, and the interviewee will leave the meeting feeling respected rather than victimized by the interview itself.

A trauma informed approach is not developed through following a checklist or a list of techniques, but rather by being constantly aware, paying attention, and being sensitive to the experiences of others.

Consider the following when thinking about a trauma informed approach to interviewing:

Build some rapport. Neutrality is key to an investigation, but the person you are interviewing will not be as forthcoming if you begin your questioning completely cold. Begin with some simple questions regarding the person’s role or background that will allow them to observe your interview style before you begin to discuss more difficult topics. You might also ask how they are feeling about being interviewed. Acknowledging the difficult situation the person is involved in (without expressing your opinion) can also be helpful in building rapport.

Give the interviewee a sense of control. Allow the person being interviewed some control over the interview. Ask them where they would like to sit. Tell them from the start that it is ok for them to ask for a break whenever they feel that it they need it. Tell them the topic areas that you will discuss, and ask them where they want to start. When interviewing someone who has been through a traumatic incident, allow them to tell their story without frequent interruptions. You can ask follow up questions once they have relayed the narrative in the most comfortable way for them.

Choose your questions carefully. Where possible, ask open-ended questions. Avoid a cross examination approach. Don’t ask questions that sound accusatory or judgemental, for example, “Why didn’t you talk to your supervisor right away?” Don’t be afraid of pauses—quiet reflection may be important in terms of allowing the interviewee time to gather their thoughts.

Be sensitive to differences. Be aware of gender and cultural issues that may impact the situation. Some cultural groups may be less comfortable responding to questions of a personal nature. Cultural differences might result in misinterpretation of body language or non-verbal cues. The person being interviewed might feel more comfortable with a support person of the same gender or from their cultural group.

Consider what you are bringing to the table. Be aware of your own issues, experiences, and biases and how they might affect your questioning. Are you convinced that this person did something wrong? Does this person remind you of someone from your own life? Are you personally outraged or offended by the accusations? If you are reacting in a negative way during an interview, take a break and consider why this is happening.

When dealing with a serious workplace complaint of harassment or bullying, or if there are concerns about bias in conducting an investigation, an employer may want to consider engaging the services of an independent, third party investigator. At Forte Law we provide third-party investigation services in the workplace, and use a trauma informed approach in doing this work.

Workplace Harassment, Workplace Investigations

Is your business ready for a harassment complaint?

Is your business ready for a harassment complaint?

We all hope that bullying and harassment won’t happen in our workplace, but with statistics showing that one in three workers experiences harassment—a complaint of bullying or harassment is possible anywhere. But are you ready to deal with one?

What is my obligation?
As an employer, you have a duty to investigate when a complaint of bullying or harassment is made. In fact, even if there is no complaint, as soon as you become aware of this type of behaviour, your duty to investigate is triggered. Worksafe BC requires all employers to have a policy in place to deal with harassment and bullying, and that all workers and supervisors receive training on recognizing, responding to, and reporting bullying and harassment. Investigations into complaints must be reasonable and undertaken in good faith. An investigation should be fair, impartial, and focused on finding facts.

What happens if an employer doesn’t investigate an allegation?
Courts have shown that they are prepared to take this obligation to investigate quite seriously. In a recent case in Ontario, the judge awarded the worker aggravated damages in the amount of $50,000 due to the fact that the employer had ignored the plaintiff’s complaint and did not investigate. The plaintiff alleged that a coworker was abusive, harassing and unprofessional toward her over a prolonged period of time. While she notified the employer repeatedly of the conduct, the employer did not take any action. The judge commented specifically that, “…this neglect in the face of [the worker’s] heightened frustration and anxiety as the work environment became more toxic warrants aggravated damages.” (Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII)).

Are you ready?
If you don’t have a policy in place, or you have not reviewed your policy for some time, now is a good time to consider doing that. If you are just getting started, an employment lawyer can help you draft a policy, and provide training for your employees to make sure you are in compliance with your obligations. If you become aware of an allegation of bullying or harassment, seek some advice right away. Don’t ignore the problem and hope it will go away on its own. As you can see, this approach can be costly!

If an investigation is necessary, an employer can investigate on its own (in house) or, if the complaint is serious or there are concerns of bias, the employer should engage the services of an independent, third party investigator. If you are conducting an investigation in house, you may want to seek legal advice to make sure that the investigation complies with your policy and legislation. An employment lawyer can provide advice about conducting investigations, and, at Forte Law, we are also experienced in acting as third-party investigators.

The best advice about harassment complaints is to be ready before one lands on your desk. With proper preparation, including a policy and training, you and your business can support your team, and avoid making headlines or defending legal actions.

Category: Workplace Investigations

Why Hire an External Workplace Investigator?

1. Who is involved?

2. How complicated are the issues?

3. Do you have time?

4. How much will it cost?

5. Should the investigation be privileged?

Four reasons to investigate a complaint – even if the employee has quit

To uncover festering issues.

To comply with obligations under Health and Safety legislation.

To comply with obligations under the Canada Labour Code.

To comply with obligations under Human Rights laws.

What if the complaint is made by a current employee about a former employee?

Trauma-Informed Workplace Investigations – Five lessons from the trenches

5 Tips for Successful Workplace Investigations

Five Tips for Conducting a Trauma Informed Interview

Is your business ready for a harassment complaint?