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From time to time, we are retained to redo a workplace investigation that an employer has already done. The prompts for our work on these occasions are different. Sometimes, on review of the report (or in the case where none is produced) the employer itself knows there is a problem with the process or the result. Sometimes, flaws are pointed out by others, such as counsel for one of the parties, or even the media in cases that become public. In other situations, employers just want an extra level of certainty that what they have found can be substantiated by another external person who is unbiased.
I have always found these “do-overs” quite interesting. It is one thing to commit resources to conducting a workplace investigation in the first instance. It is quite another to ask someone else to cover territory already canvassed. Over the years I have observed that these do-overs can be helpful to organizations in a number of specific circumstances. Here are a few that I have been involved in:
Making the case upwards
Those charged with the internal investigation, and this might be human resources or the legal department, may need to defend their process and the result upwards, either to the CEO or others at that level, or the Board. They may be certain of the result, but, because of the dynamics of the organization, or the particular issue at the heart of the investigation, they may need the extra support of an investigation and report from an external party. Perhaps the subject matter relates to a problem that they know exists, but they do not have the higher level “buy in” to fix it. The fact that a report comes from us, with our names on it, allows them, and those to whom they are upwardly reporting, to have more confidence in the result, notwithstanding the fact that our results, and their results, may very well be the same.
High profile cases
We are operating in a climate where employers’ efforts, particularly large institutional ones in relation to allegations of sexual harassment and violence, are easily mistrusted by the media, by unions, and by counsel. A very common narrative is that these institutions knew of the complaint, or knew of the problem, but failed to take adequate steps, or timely steps, to remedy it, or that the investigation into the complaint was biased or shoddy.
There are many examples of cases across the country where this narrative is accurate. There are also examples where the narrative fails to capture the nuance of the individual case. Perhaps the employer cannot act quickly because it is gathering more evidence. Perhaps a required witness is not co-operative or available. Perhaps, because of the confines of a collective agreement, a respondent cannot be immediately fired. Either way, the “do-over” in this situation can be helpful because the institution is seen as understanding the seriousness of the situation, and responding in a manner that is proportionate to the seriousness of the allegations.
Unlike investigators who operate as part of a specific statutory regime, we do not have the legal power to order the production of documents or other evidence. Nevertheless, in our experience, an external investigator may have more “situational authority” than an internal one. Once the employer has gone to the trouble to bring in someone from the outside, it communicates seriousness to the individuals who are involved in the process. They may be more willing to tell the external person difficult information than a person who is conducting the investigation internally. Moreover, we simply may be more skilled at getting the information in these circumstances because we do this all day and every day.
It is for this reason that I have observed that in the “do-over” situation, we are often able to get more information, and better information, than in our clients’ first efforts. Sometimes that information changes the entire complexion of the case.
A do-over can be a learning moment for an organization. In comparing the two processes, one done by an internal person, and one done by an external person, the organization can learn whether they have the requisite skill level to conduct workplace investigations internally, or if they don’t, where the gaps are, and how to fill them.
Consider this common scenario. An internal investigator determines that because there is no corroborative evidence of a sexual harassment allegation, the complaint fails. There is no discussion of credibility at all in the report. In fact, the credibility and reliability of the parties does not appear to have been considered at all.
The external investigator may have a different take on this. He or she may note that there is no corroborative evidence, but having questioned the parties fully, may conclude that the complainant is credible and reliable, and on this basis, will uphold the complaint.
The learning moments from the do-over are plentiful here. The organization has an opportunity to consider what evidence is needed, or not, in a sexual harassment complaint scenario. It can see what types of questions are asked of a complainant and respondent to help assess credibility and reliability, and, how to capture that in a report to show that it was considered. Most importantly, the organization will have learned that the proper response to the classic “he said she said” complaint is not to fold up your tent and say that you can’t decide.
Remedying a Problematic Report
I wrote about this in a blog two years ago. There is no delicate way to put this. Sometimes we are presented with truly awful internal reports and our mandate is to redo the process so that the employer can say the investigation has been conducted properly and that it is confident in the conclusion.
What makes a report problematic? The most obvious flaws are where the investigator reaches conclusions that are not supported by the evidence, or that the evidence is not obvious in the report. The reader is left wondering how did the investigator get to that conclusion? Another problem may be that an important witness was missed, and the report does not say why. Other issues may be that the respondent has not been notified of the allegations against him or her and has not been given an opportunity to respond before the investigator reaches his or her conclusion. These problems are not only apparent to us when we review these reports, but also apparent to legal decision makers – judges, adjudicators, and arbitrators – who review these reports when they have not been redone. These problems are common themes in the case law.
Last but not least, I must mention Bill 132. While the Bill has not yet come into force, my prediction is that “do-overs” will be on the rise once it does. This is because the Bill creates a very clear statutory obligation to conduct an investigation into complaints and incidents of harassment in the workplace, and also creates the power for an inspector from the Ministry of Labour to order one in the case where an investigation hasn’t occurred, and I think by implication, where one has occurred and it is flawed. The third party investigator that is ordered by the inspector is at the cost of the employer.
Faced with this prospect, I think employers will be carefully scrutinizing their processes, and their reports, and looking at fixing the ones that are not defensible by way of a “do-over”. This option will be far more appealing than an intervention by the Ministry and the appointment of an investigator not chosen by the employer, but imposed on it.
We are of the view that many, many workplace investigations can be handled competently and effectively by internal investigators. In fact, in a sustainable human rights/respect at work model, this should be the way that the bulk of complaints are handled. However, there are times when an external investigator is called for. A “do-over” in the situations described above, may be one of them.
About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.