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Sometimes, allegations of workplace misconduct will be clearly articulated and will be backed up by first-hand evidence of inappropriate behaviour or harassment, and employers will take the appropriate steps to conduct a fair and impartial investigation to determine whether such allegations are well founded.
Lately I have noticed a renewed focus and attention placed on the racial identities of neutral decision makers and fact finders, and on the question of whether this is something we should be concerning ourselves with when selecting one.
As workplace investigators, we regularly conduct interviews where the interviewee is accompanied by a representative from their union or association. Many collective agreements have provisions that allow employees to have their representative present during any interviews that are conducted as part of a workplace investigation, regardless of whether the employee participates as a party to the investigation or as a witness.
Before joining Rubin Thomlinson, we both worked in-house in large organizations, overseeing workplace investigations. Internal investigations can be tricky to navigate; opportunities for conflicts and confidentiality breaches are heightened when investigators work among those who they are investigating.
A new draft report hits my inbox, waiting for my review. As I click to open the document, I’m immediately curious about the particular situation our investigator faced. Every report is, in a sense, a new story.
In my role as review counsel at Rubin Thomlinson LLP, I review the workplace investigation reports that are prepared by the firm’s investigators to ensure that they are legal defensible. Clients also ask that I do the same for reports that they have prepared internally.
Time has always been of the essence in workplace investigations. In our practice, we go so far as to qualify time as one of the pillars of an investigation. As considerable as it already is, its importance may have reached another level with the recent decision in Toronto District School Board v. Canadian Union of Public Employees, Local 44001. In that case, Arbitrator John Stout found the failure to conduct a timely investigation to be a stand-alone ground to conclude a violation of the Ontario Human Rights Code (“the Code”).
Many of us are familiar with the expressions “shop talk” or “workplace banter” in reference to conversations that are presumed to occur in certain predominantly male workplaces, such as a construction site or an industrial worksite, but not in others.
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