There’s a crispness in the air that reminds me that winter is just around the corner. At the risk of being “that person,” I love this season; sitting by a crackling fire with my family and a cup of tea is what I consider perfection. Like me, some human resources departments are also gearing up for their end-of-year gatherings – apparently, office holiday parties are back in style.
Law enforcement agencies, such as police services, correctional institutions and the RCMP, are distinguishable workplaces with a paramilitary culture and an emphasis on solidarity with one another. These attributes can be important in the execution of duties, given the inherent dangers involved in working at such organizations.
However, problems manifest when the notion of solidarity evolves into an unwillingness to report the misconduct of one’s colleagues. This unwillingness, often referred to as the “code of silence”, the “blue wall” or the “thin blue line”, is often rooted in a fear of backlash in the workplace.
In 2018, the Ontario human rights tribunal case A.B. v Joe Singer Shoes Limited received a lot of attention because of its high damages award – $200,000 for the Applicant’s pain and suffering from of over 20 years of sexual harassment by her boss, Mr. Singer. But when Mr. Singer sought judicial review of this decision, it was not the quantum of the damages that was at issue; it was the Vice-Chair’s assessment of the parties’ credibility. Since this was a “he said, she said” case – there were no direct witnesses to Mr. Singer’s conduct – the Vice-Chair determined that Mr. Singer had engaged in sexual harassment, even though he denied doing so, because she believed the Applicant (Ms. B.) and did not believe Mr. Singer.
In a previous blog, we discussed the tricky issue of anonymous complaints. We set out steps that employers can take to prepare themselves for the inevitable receipt of one, and best practices in communicating with anonymous complainants. In this blog, we do a deeper dive into how to go about investigating such a complaint.
In our experience, there is no one-size fits all approach to investigating anonymous complaints. Often-times the best approach will be one that is tailored to the contents of the complaint so be sure to read and re-read your complaint carefully before deciding on how to proceed.
In my previous life, before becoming an investigator, I lived in the world of private legal practice, both in the Caribbean and in Ontario, Canada. In that role, I had the opportunity of interacting with persons of diverse social, cultural and racial backgrounds, persons of varying personality types and persons with experiences that had shaped their life or the way they interacted with others. There were many occasions where the persons with whom I interacted, whether as their advocate or as opposing counsel, were seemingly not forthcoming with the information that I needed to illicit. The typical or traditional thinking is that they are not forthcoming because they are either lying or have something to hide.
One of the questions we are often asked is how much information should be disclosed to a respondent during an investigation. Some feel that respondents are more likely to provide honest and candid information if they are taken by surprise as opposed to having advance notice of the allegations and supporting evidence. The fear is that with the information, a respondent may have more time to concoct a story in response to the allegations and evidence. The problem with this tactic is that it is premised on an underlying assumption that the respondent has something to hide and is therefore “guilty” of the allegations. Such an approach is not impartial. It also risks being found to be procedurally unfair.
A few weeks ago, I was part of a panel on TVO. The discussion centred on what had changed in the two years since the #Me Too Movement had begun. Much to my surprise, I seemed to be the sole voice on the panel who thought that the needle on the sexual harassment dial had moved at all.
At the risk of sounding like a Pollyanna, let me explain why I believe things have changed. I do so from the vantage point of someone who leads a large team of lawyers, lawyers who investigate complaints of sexual harassment across the country, in English and in French, and in every conceivable type of workplace.
I recently did several investigations which involved a bit of creativity when choosing the interview location. The situations made me think of how an interview space can affect a participant’s experience and perhaps the quality of evidence that is elicited during that meeting. Below, I offer some thoughts to consider when choosing an interview space.
The interview is an opportunity for the investigator to neutrally gather evidence. It is also an opportunity for the interviewee to talk about their understanding and observations of the situation at hand. The interview is often one of the key, if not the main, sources of information that an investigator will have.
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