In a recent decision of the Human Rights Tribunal of Ontario [AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai, 2020 HRTO 499 (CanLII)], the Tribunal highlighted how an inadequate and unreasonable internal workplace investigation by an employer could result in a breach of the Human Rights Code R.S.O. 1990, c. H.19 (Code).
We have all heard of the myth of Pandora’s Box – a box containing many evils that once released into the world could not be put back. As a third-party workplace investigator, I often think of clients having a Pandora’s Box full of information that, if released, could be prejudicial and could lead to an eventual claim of bias.
As workplace investigators in 2020, we routinely deal with issues in investigations that relate to technology, especially social media applications. In any given investigation, some portion of the alleged bullying might have taken place over Facebook, or Slack messages might provide critical evidence of sexual harassment.
It goes without saying that the entire world is currently treading in unchartered waters. The COVID-19 crisis is something that this world has not seen or experienced in many generations, if ever! All industries, businesses and sectors are assessing how to carry on with “business as usual” when the circumstances are anything but “business as usual.” In the wold of workplace investigations, the same questions are being asked.
Ordinarily, a solid workplace investigation rests on four pillars; namely – fairness, thoroughness, timeliness and confidentiality¹. If not handled appropriately, the COVID – 19 crisis has the potential to rock that foundation in two ways – it may impact the fairness and timeliness of an investigation.
Did you see the Dolly Parton Challenge meme that went viral in January 2020?
Initiated by American singer Dolly Parton, participants in the Challenge composite four photographs of themselves labelled, “LinkedIn”, “Facebook”, “Instagram”, and “Tinder”. The idea is that each photograph presents a version of the user that corresponds to a different professional, social, or romantic context. The humour in the meme lies in confessional self-awareness – a person can appear and act in one context in a way that might seem awkward or inappropriate in another.
2020 is around the corner. Although I find this somewhat alarming and difficult to digest, I suppose the warning signs were fairly obvious. And I’m not necessarily talking about self-driving cars and intuitive robots per se; just the inevitable passage of time. As one decade ends and another one is due to commence, it strikes me as an opportune moment for reflection: a time to look at what we have come to know about issues of harassment in the workplace and consider what insight the lessons of the last decade offer for the future of workplace investigations in 2020.
I suspect that for many of you, conducting investigations and report writing is a once in a while occurrence rather than a full-time job like it is for us here at Rubin Thomlinson. Many of you are busy human resources professionals and counsel with endless competing day-to-day priorities. Likely, you are pulled in many different directions, putting out small fires and trying to keep up with all of those urgent emails and phone calls. For you, investigations may feel particularly disruptive and the process of producing a good-quality investigation report daunting.
C’est une question que l’on nous pose souvent pendant notre formation sur les techniques de base en matière d’enquêtes au travail. Devons-nous vraiment tout dévoiler avant l’entrevue avec la partie intimée? Certains participants pensent que la partie intimée fournira des informations plus spontanées et candides s’il y a un élément de surprise pendant l’entrevue. Si la partie intimée reçoit une information détaillée, elle aura ainsi plus de temps pour inventer une histoire qui se conforme aux allégations et aux éléments de preuve. Cette tactique, toutefois, se fond sur une supposition que l’intimé cache quelque chose et est donc « coupable » de ce dont il est accusé. Cette approche n’est pas impartiale et peut mener à une conclusion que la partie intimée a été privée de son droit à l’équité procédurale.