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Being the daughter of a retired health care provider, I observed from an early age the balancing act of providing patient-centred care while wanting to do one’s best in a workplace that can be emotionally charged, fast-paced and ever-changing (I know that these descriptors not only apply to working in health care generally, but could apply to an employee’s experience in just one shift).
You hear things. A whisper here and there. An overheard comment about a colleague crossing the line with another colleague. Repeatedly. Or maybe it’s more than a whisper. Maybe it’s more of a resounding chorus. And the voices are all offering alarmingly similar and compelling descriptions of a colleague engaging in a pattern of behaviour that – according to multiple reports – is decidedly unwelcome. The information may even be set out in writing in a formal letter of complaint. But the author of the letter has chosen to remain anonymous.
When we ask complainants in a workplace investigation whether there were any witnesses to the events that form the basis of their allegations, it is not uncommon to hear, “Well no, but I told my partner/best friend/colleague everything.” This is especially true in cases of sexual harassment or assault, where the events in question often take place in private, without witnesses present.
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.
I began my legal career as a young litigation associate in private practice and like many lawyers, found the first few years tough. The hours were often long, the timelines tight and the pressure to produce perfect work was constant. At the time, it was difficult to see why I was putting myself through this and eventually, I left private practice to become in-house counsel. I reflected upon those years many times after I left and begrudgingly, came to realize that the training I received had served me well over the course of my career. This was especially true of the writing skills I had developed, mostly by preparing court submissions under the supervision (read: scrutiny) of senior lawyers. These lawyers taught me the importance of putting myself in the shoes of the reader, a lesson that has had the most impact on the way I write investigation reports and review the reports of other investigators.
The concept of a “microaggression” has received significant attention in recent years, and was explored more fully in a previous post. At its core, a microaggression is a subtle, often unintentional, behaviour that is rooted in stereotypes about marginalized groups. Despite the absence of ill will, microaggressions in the workplace can nonetheless amount to discrimination or harassment.
However, the challenge for investigators arises in determining whether a seemingly innocuous comment or action was motivated by a discriminatory stereotype or bias. When examining such allegations, investigators may wish to rely on the broader context and circumstantial evidence in arriving at their conclusions.
When I do respectful workplace training, one of the responses I often hear is, “Does this mean I can’t compliment my co-worker’s hair/clothes/eyes/jewelry?” My answer is always an annoyingly lawyerly one: “It depends.”
A comment that pertains to a colleague’s appearance has the potential to create a welcome personal connection. It can also cause harm. A set of recent decisions from the British Columbia Health Professions Review Board (the “Board”) provides some insight on when comments on a person’s appearance are inappropriate.
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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