Authors: Elizabeth Bingham

Special note to BC readers:

If this subject is of interest to you, you may wish to attend our related workshop. Some spots are still open for the following sessions – we recommend registering soon. We hope to see you there.

Conducting Sexual Harassment and Violence Investigations
November 27-28, 2018 in Vancouver, BC
This advanced-level training is a must for any staff who may respond to and/or investigate sexual harassment or sexual assault complaints.

Workplace Investigations in the University and College Context
November 29, 2018 in Vancouver, BC
This training examines the demands and challenges that investigations present in the university and college context, and allows for a deep dive into possible solutions.

How many times in the course of a workplace investigation have you heard a complainant say, “He’s just always rude” or, “She snaps at me all the time.” Especially in the initial interview, it can be difficult to get specifics from the complainant about his or her allegations. Most people never think that one day they’ll have to recount for an investigator every time a colleague rolled his eyes or responded sarcastically to a question. However, a recent case from the Alberta Court of Appeal, MacLeod v. Alberta College of Social Workers, illustrates just how important the specifics are.

The Case

The appellant was a Registered Social Worker who was sanctioned for four counts of professional misconduct after a hearing before the Hearing Tribunal of the Alberta College of Social Workers (“the College”), her professional regulatory body. She appealed the Hearing Tribunal’s findings of professional misconduct, and the case eventually made its way to the Alberta Court of Appeal.

The allegations that resulted in the findings of professional misconduct arose from various incidents that occurred while the appellant was employed at the Centennial Centre for Mental Health and Brain Injury (“Centennial”). The allegations were:

  1. That in her interactions with her colleagues at Centennial, the appellant was dismissive and rude by putting her hand up to halt or discontinue conversations with individuals and during meetings.
  2. That the appellant was rude, abrupt and dismissive to staff members at Centennial.
  3. That in a meeting of November 1, 2013 with the family members of a client, the appellant was dismissive and rude in her interactions with them by:
    • She “shushed them” during a meeting;
    • She directed them to immediately leave her office while calling the doctor for clarification;
    • She insinuated to the family members that the doctor had not provided an appropriate plan for discharge of the family member;
    • She was dismissive of the efforts of the physician interacting with the patient discharge;
    • That in her interaction with the physician, she was rude, abrupt and dismissive of the role of the physician in the discharge process.
  1. That in an email dated April 30, 2014 from the appellant to a co-worker, she was rude and abrupt and attempted to threaten or insinuate threats to the co-worker.

At the hearing, the College stated that the allegations only related to the appellant’s behaviour at work between 2012 and 2014. However, the Hearing Tribunal heard evidence of the appellant’s behaviour between 2001 and 2014.

The Court of Appeal overturned the findings of professional misconduct on the first three allegations.

The Court found that the first two allegations were too vague. This led the Hearing Tribunal to improperly rely on evidence from the appellant’s entire history of employment at Centennial: “the generality of these complaints led to the appellant having to justify her employment performance over more than a decade.”

Moreover, even though the third allegation referred to a specific incident, the Hearing Tribunal also relied on the 2001-2014 evidence to make its finding of professional misconduct in relation to this allegation. The evidence was treated like similar fact evidence when it should not have been, and it was improperly used to expand the scope of this allegation, so the Court overturned this finding as well.

Takeaways for Workplace Investigators

This case highlights two separate, but related, problems with non-specific allegations: they do not sufficiently inform the respondent of what he or she must respond to, and they can lead to the investigator relying on all sorts of vague accusations, rather than on solid evidence.

Avoiding these problems starts in the initial interview with the complainant. Suppose you are investigating the allegations against the respondent and the complainant tells you that she is “rude, abrupt and dismissive.” Your inquiry cannot end there. When you hear a general statement like this, try asking questions like:

  • When was the first (or last) time you remember her acting rudely towards you?
  • What are some incidents of rude, abrupt or dismissive behaviour that stand out in your mind?
  • What do you mean by rude (or abrupt, or dismissive)? Can you give me an example?
  • Did you make notes of any of your interactions with the respondent?

These questions should give you specific examples of the alleged inappropriate behaviour. From there, you can gather even more specifics by asking questions like:

  • When did that happen? If the complainant can’t remember, you can try to narrow down the timeframe by asking questions like: was it a year ago? More than a year ago? More than two years ago? Was it spring, summer, fall or winter? Do you remember anything else that was happening around this time?
  • Was anyone else there when this happened?
  • Where did this happen?

This will allow you to get from “you are rude, abrupt and dismissive to colleagues” to “sometime between June and September of 2018, you yelled at the complainant in the complainant’s office while working on a strategy document.”

When the respondent gets these specifics, he or she will have a better chance of remembering the incident the complainant is referring to, and will accordingly be better able to provide you with his or her version of events.

Moreover, getting these specifics avoids the respondent “having to justify [his or her] employment performance over more than a decade.” Rather than responding to “you are rude, abrupt and dismissive to colleagues” with the details of every interaction with a colleague he or she can think of, the respondent can address the incident in question. Not only is this fairer to the respondent, it will also make your investigation more manageable.