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This is a question that I have had to answer a few times in the last year. Here is a description of each process and the main differences between the two.
A workplace investigation is a process usually commenced by a complaint against a specific person or group of people. In an investigation, we not only find out what is alleged to have occurred, we also endeavour to make a finding as to whether it occurred as alleged. Depending on the mandate, in addition to factual findings, the investigator may determine whether there has been a violation of a law (such as the Ontario Human Rights Code) and/or a policy (such as an organization’s policy against harassment). The mandate may also include making recommendations.
A workplace assessment is a process that seeks to gather information about the culture, environment, practices, and behaviours in the workplace in order to identify the root causes of any conflicts and issues. It seeks to identify possible areas of improvement and will often include recommendations towards improving the workplace practices, procedures, and culture. Information in an assessment is obtained by surveys, interviews, and focus groups. The ultimate intent is generally to improve the workplace environment for all employees.
Originating event. An investigation is usually a reactive process initiated with a complaint, or the organization’s awareness of a problem involving a specific respondent. An assessment, on the other hand, can be proactive to assess the temperature of the workplace or reactive in that it is triggered by an organization’s knowledge of problems in the absence of any specific complaint. For example, an organization may become aware of low productivity, high turnover, or rumblings of discontent and may seek to better understand the cause of such problems through an assessment.
Nature of the conclusions. An investigation seeks to make findings of fact in respect of specific incidents and not systemic issues. The investigation mandate may also include determining if there has been a violation of a law or policy. While an assessment may reveal themes, it ultimately does not result in findings of fact. Rather, the information gathered from participants represents their subjective experiences. An assessment does not test that information to decide whether it is factually true. Furthermore, unlike an investigation, which can lead to disciplinary action against an employee, an assessment is not punitive nor focused on blame. The ultimate goal is generally to improve the workplace environment for all employees.
Confidentiality and anonymity. This is probably the question I am asked most frequently: to what extent is it possible to keep the participants’ identities anonymous and the information they provide confidential? While it may be possible to guarantee confidentiality and anonymity in an assessment process, subject to defined limitations (for example, in respect of information that suggests workplace violence), such a guarantee cannot generally be afforded to participants in an investigation. As noted above, an investigation mandate includes factual findings. As a result, and for fairness purposes, there are limits as to what information an investigator can keep confidential in an investigation. The investigator may have to disclose information to the respondent, about what is discussed to allow him or her an opportunity to respond. At the conclusion of the investigation, the investigator prepares a report and may have to disclose parts of the interview in the reporting. Finally, should there be any litigation in respect of the subject-matter of the complaint, the investigator could also be obliged to disclose information as required by law or a court order.
Sharing the results. While the results of an assessment can be shared company- or department-wide, the same is not true for an investigation where the results are only shared with the parties to the investigation — the complainant(s) and respondent(s).
In summary. Most often, the originating event and the desired nature of the findings will govern the process. There can also be a legal obligation to investigate. Under section 32.0.7(1) of the Ontario Occupational Health and Safety Act, an employer is to ensure that an investigation is conducted into incidents and complaints of workplace harassment. While there was generally no legal obligation to perform an assessment, the regulations under Bill C-651 now require federally-regulated employers and their applicable partners to jointly carry out a workplace assessment in order to identify risk factors that contribute to harassment and violence in the workplace. It is important to remember that if an organization wants factual findings, anonymity cannot usually be guaranteed to the participants in an investigation process.
1The full name of the legislation is Bill C-65: An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1.
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