While you’re here, you may wish to attend one of our upcoming workshops:
Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
A client recently asked if I knew of any Respectful Workplace Policies that could be used as a framework for creating their own policy. While I am familiar with a number of large organizations’ policies, I began wondering where I would turn if I was to begin searching for greater insight into what should go into a Respectful Workplace Policy. It prompted me to do a little research into how the provincial governments in Atlantic Canada have addressed Respectful Workplace Policies relative to their workforces.
The Atlantic Provinces’ governments are among the largest employers in the region and bear the responsibility for creating and updating laws that apply to all citizens living within their borders. It stands to reason that, on the topics of harassment and respect in the workplace, each government would have a readily accessible, easily understood, and comprehensive policy which reflects these laws governing employees’ actions in the course of their employment with and for the government.
The provincial government policies consistently replicate a few fundamental elements of a Respectful Workplace Policy including a preamble and definitions’ sections. A preamble or policy statement, which focuses on the fundamental aims of creating a discrimination-free workplace where individuals are treated with dignity and respect and where, once they become aware, everyone bears the responsibility for taking appropriate action to stop any harassment, is essential for accomplishing the goal of the policy. The governments are clearly of the view that it is important for their employees to know not only that such a policy exists but also what that policy seeks to accomplish.
It’s apparent in each policy that a great deal of care and attention is given to definitions, as these include: complainant, respondent, harassment and workplace. Key to the definition of “harassment” is that the behaviour is “known or ought reasonably to be known to be unwelcome”. Equally, the definition of “workplace” is not simply limited to a location or address where employees carry out their work duties but also includes work-related social events, lunchrooms, washrooms, cafeterias, a client’s home or work site, a vehicle, conferences, training sessions, and business travel. The definitions section in each policy is much more comprehensive than those noted above. The result is that each province’s policy’s inclusion of a fulsome list of terms is helpful to anyone involved in the complaints process and allows for a deeper understanding of workplace behaviours that are or may be objectionable and what can be done if objectionable behaviours occur.
New Brunswick’s and Newfoundland’s policies make it clear that, during an investigation of a complaint, both the complainant and respondent have the right to be accompanied by a representative of their choosing. Interestingly, the Newfoundland policy goes on to state that when complainants or respondents seek legal assistance they are responsible for those costs. In developing a Respectful Workplace Policy we must keep in mind that in unionized environments, bargaining unit members are entitled to union representation in situations specified in their collective agreements. But policies must also include consideration for representation of non-unionized staff and what rights, if any, exist for these staff to receive assistance to navigate the complexities of the investigation. At a minimum, Respectful Workplace Policies should clearly articulate entitlements to representation for complainants and respondents whether they are unionized or non-unionized.
An area that I found somewhat lacking in all but the Prince Edward Island policy was around reporting the outcome of a formal complaint. Each policy includes provisions for formal investigation of complaints and usually, formal investigation results in a written report. However, questions often arise as to who has a “right” to the report. Prince Edward Island’s policy clearly states that a written report will be forwarded to the Deputy Minister, Human Resources Manager, and the Director of Employee Relations of the Public Service Commission. The New Brunswick policy provides that the investigator shall report the findings and recommendations to the CEO and it is the CEO who will take the action that is appropriate in the circumstances. The Newfoundland policy states that the findings of a formal investigation are presented to the Deputy Minister of the respondent. If I were a government employee, I’m not sure that I would know what ‘findings’ actually means, or if there was a written report, who would be copied on its circulation. I know that in these formal investigations there are always questions around whether the complainant and/or respondent must receive the report. While there is no strict legal requirement, decisions on this most important question ought to be made with consideration given to whether there is information that is hurtful or prejudicial to one party in the report and whether the party’s interests can be equally served by disclosing only portions of the report without providing the entire report.
Where these government policies also lack sufficient detail is in explaining the essential “how” of the formal investigation process. It is only the New Brunswick policy that specifically lists the obligations of the investigator in their conduct of the investigation. A Respectful Workplace Policy must outline the steps in an investigation, the obligation on the parties to participate in the investigation, attend interviews, provide any and all relevant documentation and that the outcome of the investigation will be reported to both the complainant and respondent. It is also necessary to include the topic of timelines when explaining the ‘how’ of an investigation. Nova Scotia’s policy mentions that reasonable action to address the allegation will be taken within 10 working days and Prince Edward Island’s policy states that the investigative team will contact the complainant and respondent within 30 days of their appointment. Without suggested timelines, any complaint process can languish and be seen to fail the parties while they wait uncomfortably for difficult and stressful workplace issues to be resolved. Balance should be struck between having set timeframes that can be respected by the parties while being sufficiently flexible so as to give appropriate time to address the unique circumstances of any investigation.
Upon examination, the New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland governments have created Respectful Workplace Policies that give government employees a roadmap for what constitutes appropriate workplace conduct and what to do if an employee sees or is subjected to inappropriate conduct. Each policy contains the ‘must haves’ including: a preamble or policy statement on the policy’s goal; definitions; an outline of the informal and formal procedures involved in investigating a complaint; how the formal investigation will be finalized, and communication of the outcome to the parties. As is often the case, there is always room for improvement and any amendments or changes such as augmenting the sections referencing timelines and providing more details on the investigation and report writing process could contribute to greater clarity and would serve the best interests of every Atlantic provincial government employee.
About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.