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Policy pet-peeves continued: Crafting a complaint and investigation process in your policy that will make workplace investigations easier

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My colleague Michelle Bird recently wrote about her policy pet-peeves, prompting me to suggest a few of my own.

As she indicated, one of the first steps in an investigation is to review the relevant workplace policies, particularly the complaint and the investigation procedures. While setting out the procedure to follow in filing a complaint and in conducting an investigation can provide a helpful framework for the organization, the parties, and the investigator, it can also at times tie their hands in ways that may not have been foreseen.

Here are a few things to consider.

1) Where (with whom) to file the complaint?

I have seen some policies that set out a specific hierarchy for reporting a complaint. The order sometimes starts off with addressing the matter directly with the person engaging in the unwelcome behaviour, followed by reporting it to a supervisor, that supervisor’s manager, Human Resources, and in cases where Human Resources is engaged in the alleged wrongdoing, a member of the executive team and/or an independent organization. These policies promote a certain order; in other words, the complainant should report the matter to his or her immediate supervisor, unless that person is the one engaging in the unwelcome conduct and so on.

While all of these reporting mechanisms are good ones, there may be situations when a complainant does not want to raise a matter of concern with an immediate supervisor even in circumstances where the supervisor is not the person engaging in the unwelcome conduct. Perhaps the complainant and the supervisor do not have a very good working relationship, or perhaps the complainant has brought matters to this person’s attention before and felt that the concerns were not adequately addressed. A complainant may also at times feel more comfortable raising a delicate matter with someone outside his or her immediate working group, such as someone in Human Resources.

What to consider instead:

Provide reporting options. Allow a complainant to choose the person to whom to report: a supervisor, Human Resources, or even a third-party organization and/or an anonymous reporting tool. The more options, the greater likelihood that employees will bring their complaints to the attention of the organization.

2) What steps of the process will be specified?

Some policies set up a very elaborate step-by-step process for filing a complaint and conducting an investigation.

For example, I have seen policies that first set out an informal resolution stage, which, if unsuccessful, can then lead to a formal complaint, which must be done on a designated form. That form is then sent to a respondent, who is given an opportunity to respond in writing. There may be other meetings. Some policies mandate that mediation be offered at certain points in the complaint process.

While a step-by-step process may provide some comfort to those engaged in the process and to those managing the process, they can also be used to attack the final outcome of an investigation if any step in the process was omitted.

Having a designated complaint form is helpful in obtaining all of the necessary information, but just because a complainant has not completed the requisite form does not mean that an employer has no obligation to investigate. On the contrary, an employer has a duty to investigate incidents even if there is no formal complaint. Sometimes, an employer may become aware of enough grumblings about a particular department or person that it decides to initiate an investigation without a formal complaint. Other times, the complainant is unknown because the information has been brought to light through an anonymous reporting tool. And, in some cases, the allegation may be so serious, such as one involving violence, that an organization may to wish to immediately proceed to the investigation step.

What to consider instead:

A policy that allows for flexibility in the process. For example, while a policy may encourage completing a formal complaint form, this can be set out as a preference rather than a mandatory step in the process. By all means, include the possibility of mediation as an option but make neither its offer nor the mediation exercise mandatory. The use of the word “may” throughout any step-by-step process allows flexibility depending on the nature of the complaint.

3) Should you set out how long the process will take?

How long will the investigation take? The answer to this question could easily be the subject of its own blog – more on this some other time. While an investigation should be fair, comprehensive, and timely, there are many reasons why delays occur. One of the situations I encounter most frequently is an ill party who is unable to immediately participate in the investigation. If the prognosis is such that we can expect the party to be well enough to participate in the not too distant future, it may make sense to wait and allow that person the opportunity to do so. Each investigation is also different in complexity; an investigation involving one complainant, one respondent, and only a few allegations will take less time than one involving multiple complainants, multiple respondents, multiple witnesses, and a large number of allegations. Furthermore, if the organization has decided to hire an external investigator, there may be delays in respect of that person’s availability.

I have seen some policies set out an expected time frame for completion of the investigation, failing which the investigator must request additional time. It was never clear to me, however, what would occur if the extra time were not granted. Would the investigation come to an abrupt end without having had the opportunity to interview a key witness who was not immediately available?

What to consider instead:

Either state that the investigation will be conducted as quickly as possible or, if you must set out a particular time frame, ensure that the time frame is a guide only and may be exceeded as the circumstances warrant.

4) Will you set out the mandate in the policy?

Some policies set out the type of findings an investigator will make, such as factual findings, whether the behaviour is contrary to the policy, and recommendations.

Again, flexibility is key here. I have done some investigations where I was asked to investigate not only allegations of harassment contrary to a specific policy, but also other allegations of concern to the organization, which, while not necessarily contrary to the harassment policy, were contrary to other internal expectations such as rules surrounding conflicts of interest and confidentiality. At times, such allegations may be intertwined; for example, an allegation that a supervisor yelled at an employee to do something contrary to the organization’s conflict of interest rules is potentially a harassing conversation and one that brings into play the conflict of interest provisions. Often, organizations prefer that an investigator limit his or her findings on the conflict of interest matter to factual findings only. But if the harassment policy mandates a policy analysis, then that may present an issue where the matters are intertwined.

What to consider instead:

If possible, leave the mandate open-ended to be decided on a case-by-case basis.

Ultimately, the key is to provide enough structure that allows employees to understand the process while maintaining flexibility for the unexpected.

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