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When it comes to anonymity in workplace investigations, there are various facets. One of our partners, Liliane Gingras, recently wrote a blog about the risks of promising complainants a guarantee of anonymity throughout the investigative process. However, I would like to talk about situations where complaints are made by individuals who are completely unknown to the employer.
“If you can’t write out your mandate in a short and simple paragraph, don’t start.”
When delivering our Workplace Investigation Fundamentals sessions, this is how I start the discussion on mandate. Simply put, an investigator’s mandate is the thing (or things) that they are being asked to do, the decision (or decisions) that they are being asked to make.
In our practice as workplace investigators, we regularly conduct investigations into allegations of sexual misconduct. Investigations are critical to ensuring a fair outcome and a safe work environment when these types of serious allegations are made.
Employers and workplace investigators face a continually-evolving understanding of “discrimination” under the Ontario Human Rights Code (the “Code”). In recent years, the case law has recognized that discrimination can occur in a wide variety of forms, often subtle and indirect.
As a workplace investigator and a team lead for a group of fellow RT investigators, I spend a fair amount of time thinking about reply interviews. Anyone who has conducted an investigation themselves or reviewed an investigator’s report can probably appreciate why: the reply or follow-up interview is a place where the need to balance the fairness, neutrality, thoroughness, and confidentiality of the investigation really comes into focus.
A random question occurred to me the other day, “Could disciplining an employee due to their body odour be a form of discrimination?” This question occurred to me when I did a double take reading the headline of the Washington Post article, “Lawsuit says American Airlines kicked 8 Black men off plane, citing body odor.”
My colleagues Christine Thomlinson and Lori-Ann Green recently wrote about how an organization’s respect at work policies, often written to comply with its legal obligations and to correspond with legislative requirements, may use legal and technical language which can be difficult to interpret, and may, from the perspective of those whom the policy is designed to protect, not be easy to navigate.1
As a workplace investigator, maintaining neutrality and avoiding bias is always top of mind. I found a recent Federal Court case, Whitelaw v. Canada (Attorney General), to be helpful, because it provides a great summary of the case law in this area, and insight into what the Court evaluates when dealing with allegations of procedural unfairness in investigations.
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