Authors: Irit Kelman

A complainant files a harassment or discrimination complaint and then quits. A respondent says the allegations are ridiculous and refuses to participate.

What do you do when the individuals who have the most important information refuse to participate in a workplace investigation?

To start with, do not automatically make adverse inferences about a party’s lack of participation. Do not assume the complaint is untrue, frivolous or vexatious just because the complainant will not participate. Do not assume the respondent has done the things alleged just because they will not participate.

So what do you do?

Four questions to ask

  1. Do you need to investigate?

Determine if you have a duty to investigate. If the allegations turned out to be true, would they constitute a breach of your policy or relevant legislation (for example, the Ontario Occupational Health and Safety Act)? If the answer is yes, you have a duty to investigate. Do your best with the information you have. Keep in mind that the investigation needs to be tailored to the circumstances.

 

  1. Can you persuade the person to participate?

Try to meet or talk to the person who is refusing to participate. Find out why they do not want to participate. See if you can address those concerns.

Let a complainant know that the organization is taking the complaint seriously and is conducting an investigation. Help them understand that the investigator can only make a decision based on the information they have. They may have additional details that supports their complaint that they did not think was relevant. If an allegation is not clear, the complainant will not have an opportunity to ensure they are properly understood if they do not participate. This can impact the outcome of the investigation.

For a respondent, remind them that the investigation is a fair process. You have not reached any conclusions yet. Their participation is important to the process. They can provide their perspective on the complaint which may include denying facts, providing an explanation or context for a comment or conduct, and raising new facts that are important to the investigation.

One reason a respondent may not want to participate is that they may not properly understand the standard of proof. They may be influenced by their understanding of criminal law from the news as well as popular crime shows and movies. They may mistakenly believe that if the complainant cannot prove the allegations beyond a reasonable doubt, that their complaint will fail.

Make sure they understand this is incorrect. If the investigation finds one party to be credible and if there is supporting evidence such as documents, video footage or witness statements, there may be enough evidence to make a finding against that person, even if they have not participated.

For both the complainant and respondent, it is important that they understand the possible impacts to the process and the ability to establish facts if they decide not to participate.

 

 

  1. Are there other sources of available evidence?

Did the complainant put anything in writing such as a written complaint or supporting documentation?

If it is relevant to the complaint, can the organization search the email or computer of the non-participant to see if there are any relevant documents?

Are there witnesses who can shed light on the complaint?

Is there any other reliable evidence that witnesses or the organization may have?

 

  1. Can you make findings with partial information?

The standard of proof in workplace investigations is the balance of probabilities – is it more likely or not that the incident happened as alleged.

If there is not enough evidence to get over the balance of probabilities hurdle, then the complaint will fail. If there is enough evidence, the complaint will be substantiated, either in whole or in part.

 

Bonus considerations: review the organization’s policies and training on harassment and discrimination and ask three more questions:

  • Does the policy state that employees are expected to cooperate in workplace investigations? This may help with witnesses who do not want to be seen as voluntarily throwing their colleague “under the bus,” but who will participate if required. You may still run across a party or witness who participates but responds with, “I don’t recall” to every single question you ask! Compelling participation may not entirely solve your problem, but it is a start.

 

  • Does the policy outline what supports are available to parties? Investigations are very stressful for all involved. Policies should acknowledge that. Remind employees about access to EAP, if available. Allow the complainant and respondent to bring a support person to the interview.

 

  • Does your workplace training explain the investigation process and highlight all the steps that are in place to ensure fairness for the parties? The more buy-in and understanding of the process there is across the organization, the more likely it is that employees will participate in investigations.

 

Ultimately, it is preferable to have the full participation of the complainant and respondent in an investigation. However, if a party chooses not to participate, the investigation can still go on.