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Serious insight for serious situations.

Serious insight for serious situations.

When can I tell my story?

Workplace investigators all do the same thing when they conduct an investigation: they tell participants to keep the investigation and its subject-matter confidential. This instruction helps protect participants’ privacy and maintain the integrity of their evidence. But what happens to this confidentiality requirement when the investigation is over? How does an employer respond when a participant in an investigation says that they want to tell their story, in their own words, to an audience beyond the painstakingly neutral and objective investigator?

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Feelings are not evidence

As a workplace investigator, my work involves making factual findings where I must determine whether an alleged incident occurred. Over the years, I have interviewed individuals who have conveyed to me their sincere feeling that the alleged incident I am investigating has happened but have not been able to provide any other evidence or witness to corroborate their feeling. For instance, I have had witnesses state that while they did not see the alleged conduct occur between the complainant and the respondent, they feel it happened based on previous observations of or similar interactions they have had with the respondent.

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Fine line between deception & honesty – Understanding a reluctant party

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.

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#MeToo at two – Has anything changed?

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.

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When declaring a complaint to be frivolous or vexatious, employers need to tread lightly

Workplace investigations can be hard on parties and employers alike, and the challenges don’t end when the investigation is over. At the conclusion of the investigation, decisions need to be made: What consequences (if any) will there be for the respondent? How will the employer remediate the working relationship? Is it even possible to do so?

A question I often get asked as an external investigator when the allegations turn out to be unsubstantiated is: Does this mean that the complaint was frivolous or vexatious, and if so should there be consequences for the complainant?

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Think you’re off the hook to investigate? Not so fast

As investigators we know that an employer’s duty to investigate – while necessary to ensure a healthy and safe working environment – can also be cumbersome, expensive, and a significant strain on an organization’s resources. When an employee leaves the workplace and then files a complaint of harassment or discrimination, employers can be quick to try and avoid the investigation on the basis that an employment relationship no longer exists. Two recent cases – one from the Ontario Grievance Settlement Board and one from the Canadian Human Rights Tribunal – suggest that employers need to slow down and consider some factors before dismissing a former employee’s complaints.

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Il, elle, iel ou ille? Quel langage neutre utiliser en français? | Gender neutral language in French, does it exist?

Lorsque j’étais membre du Tribunal des droits de la personne de l’Ontario, j’ai présidé à une audience qui se déroulait en anglais où une des parties désirait être identifiée par le pronom « they ». Et si l’audience s’était déroulée en français? Est-ce qu’il y a un terme correspondant? On le sait, la langue française n’est pas neutre; tout est forcément féminin ou masculin.

French is not a gender-neutral language, which presents added challenges when referring to individuals who identify as non-binary. There is no corresponding term to “they” in French. As noted by the Ontario Human Rights Commission, deliberately misusing pronouns can be a form of discrimination under the Human Rights Code.

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Unfair investigation? No comment.

We are now in a world where workplace harassment is taken much more seriously than it was before. Although some jurisdictions in Canada do not have an explicit legal obligation to investigate incidents of this nature, there is now a pressing moral obligation to do so. But when such a moral obligation is unmoored from legal principles or government-issued guidelines, there is a greater risk of unfairness to all parties. An investigation in this context is more likely to be guided by an emotional drive to either undermine those who raise complaints or persecute those who are alleged to have behaved badly, rather than arriving at factual findings from a neutral perspective using a fair investigation process.

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