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.
For most people, participating in a workplace investigation is an unusual departure from their workplace routine. Whether they are a complainant or a respondent, it can be a stressful interaction to sit in a room, with a stranger, and be asked about the details of something that happened, say, ten months ago. One way to address this stress is by allowing a support person to attend the meeting. Indeed, some institutions specifically contemplate the involvement of a support person in their policies. But like anything connected to a workplace investigation you need to think about the support person’s attendance at the interview before it happens.
Employers sometimes ask us for guidance on how to share the results of a workplace investigation with the parties. It’s not difficult to imagine why.
All parties to an investigation—so long as they are employees of the employer—are entitled to learn the results of the investigation, as noted in the Ministry of Labour’s Code of Practice.
Yet letting a Complainant know that his harassment complaint was not substantiated, or telling a Respondent that he engaged in bullying, is difficult information to deliver. Information like this can be physically and emotionally overwhelming for the parties to hear, and both may experience a variety of emotions in response.
At Rubin Thomlinson we deliver a lot of training on conducting workplace investigations and often the discussion turns to the costs of conducting an investigation, whether it be the monetary costs of an external investigation or the time costs of an internal investigation. These costs are typically balanced with the benefits of conducting an effective investigation, such as allowing employees to be heard, demonstrating a commitment to a respective workplace culture by “walking the talk” of policies, clarifying what actually occurred, and implementing targeted outcomes.