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When conducting a workplace investigation, particularly those involving allegations of discrimination, harassment, or reprisal, one issue that may arise is the relevance of the intentions of the respondent.
Remote work was once considered a privilege. Requests to work from home were largely denied and granted only in special cases. As the March 2020 lockdown went into full effect and office buildings emptied, once bustling downtown cores became near ghost towns. For the last fifteen months, remote work has been the status quo. Fears of low employee productivity have largely been allayed. In fact, some organizations have spent in the millions building up VPNs and infrastructure to enable remote work.
In my last blog, I discussed “Restoring the workplace before a harassment or discrimination investigation.” However, what if the horse is already out the barn? An investigation has been conducted; relationships in the workplace are broken; the environment has become toxic because of the situation, the investigation, or both; there is a lack of trust; productivity is low; and/or communication is poor. How do you restore the workplace now?
Fortunately, or unfortunately, harassment and discrimination investigations have become quite prevalent in the workplace in recent years. Notwithstanding the legislative mandate, it is a positive indication when organizations are responding to complaints of harassment and discrimination within their workplace. However, in my experience as a workplace investigator, I often see quite clearly that, before an organization decides to pursue an investigation, there are multiple opportunities to address some of the issues by using less adversarial means.
As workplace investigators, it is important to be mindful of how you frame your questions when interviewing parties to an investigation. Framing is even more important when engaged in discussions about an individual’s identity (e.g., sexual orientation, race, nationality, religion, etc.).
In a recent blog, my colleague Sharon Naipaul reviewed the trilogy of 2019 Supreme Court of Canada sexual assault cases and considered how they inform our work as workplace investigators. Although it was in the early 1990s that new procedure under the Criminal Code limited the admissibility of past sexual history evidence at trial, these cases demonstrate that there is still tension with how to use less overt evidence of prior sexual history. This area is problematic as it continues to be plagued by what have been dubbed as the “twin myths.”
In a recent webinar offered at Rubin Thomlinson, titled “Primer on Consent,” we enjoyed a highly informative discussion on consent in the context of sexual assault. Part of that presentation included reference to a trilogy of cases from the Supreme Court of Canada (SCC) on the issue of sexual assault and s. 276 of the Criminal Code (“CC”).
The Ontario Court of Appeal recently considered this question in a case involving an appeal from a conviction of sexual assault.[1] The decision is an important one for any workplace investigator faced with assessing someone’s credibility.
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