Admittedly, writing about policy writing may not be the most exciting topic. It is, however, a really important one. A good policy is what sets up a whistleblower program for success. If done well, it can also give important information about what the whistleblower program entails to those who are thinking of reporting wrongdoing.
What seems like a really long time ago, I wrote in one of my blogs that I would be doing a series on whistleblowing. It seemed like a great idea at the time: there isn’t that much practical information about whistleblowing out there and I have a lot to share on the topic given that I have done work in this field for many years. But then, a pandemic happened, and my “series” didn’t quite get off the ground. I’ve come back to the topic, though, as I’ve been fielding some questions about it lately.
I have seen some policies that set out a specific hierarchy for reporting a complaint. The order sometimes starts off with addressing the matter directly with the person engaging in the unwelcome behaviour, followed by reporting it to a supervisor, that supervisor’s manager, Human Resources, and in cases where Human Resources is engaged in the alleged wrongdoing, a member of the executive team and/or an independent organization.
The first step in any new investigation is to review the workplace harassment policy. As both an investigator and someone who has written workplace harassment policies, I sometimes find myself sighing deeply as I conduct this review, knowing that some parts of the policy are going to make the investigation process harder – not only for me, but for the parties and the employer as well.
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).
This is the first in a series of blogs that I will be writing on workplace whistleblowing. There is not a lot of practical information available on the topic and I want to help shed some light on how employers can be better prepared to deal with employees who blow the whistle.
I am somewhat of an anomaly in that I have a lot of hands-on experience with this subject matter. I have managed whistleblowing programs, conducted intake interviews with whistleblowers and investigated alleged wrongdoing disclosed by whistleblowers.
For this blog, I thought that a good place to start would be to provide general information about workplace whistleblowing given that it is a topic that is foreign to many.
Investigations of misconduct within schools, sports organizations, churches, and community or recreational organizations or programs can involve children as parties and/or witnesses. Any investigation that involves children presents a challenge for investigators for a variety of reasons. On a human level, the vulnerability of a possible child victim of misconduct is taxing to deal with emotionally and psychologically. And the investigator bears the added burden of trying to ensure that no additional harm is visited on the child through the investigation process. In considering the role of an investigator as someone who must collect evidence from a child, the challenge for the investigator is to find an approach that will enable the child to provide the best evidence they can. The additional challenge here is that there are limited resources available to guide investigations that involve child parties or witnesses.
In a recent decision, T.A. v Manitoba (Justice), 2019 MBHR 12 (CanLII), the Manitoba Human Rights Board of Adjudication (the “Board”) took a major step by ordering the Government of Manitoba to revise the criteria for changing sex designation to include recognition of non-binary sex designations on Manitoba birth certificates. This was the first adjudication in Manitoba on gender identity since its inclusion in the Manitoba Human Rights Code (the “Code”) in 2012.