Did you know that the Canadian Federal Government is our nation’s biggest employer? The Government of Canada signs the bi-weekly paycheque for upwards of 250,000 people in the core public administration and separate agencies.[1] All of these employees, plus roughly 100,000 National Defence and RCMP members and employees, look to the Treasury Board for their at-work rulebooks.

One of those Treasury Board rulebooks, found under the header “Healthy Workplaces”, sets out the government’s robust harassment policy.  Developed in 2012, the Policy on Harassment Prevention and Resolution, was written to “provide deputy heads with strategic directions and set out expected results to foster a respectful workplace and address potential situations of harassment.”  The policy goes hand-in-hand with the Directive on the Harassment Complaint process, which “describe[s] the minimum requirements of the harassment complaint process and set[s] out expected results in order to ensure the timely and efficient resolution of complaints.”

For any employee, manager, or potential investigator trolling the Treasury Board website in the face of a possible harassment allegation or intervention, the information and toolkit is plentiful; it is all found on the Prevention and Resolution of Harassment section.

• For employees who feel that they might be harassed, there is an “is it harassment?” tool as well as a primer on involving informal conflict management.

• For managers who feel that they may have a pending harassment issue, there is a tool for managers to “foster a culture of respect” in the workplace and possibly intervene in the matter. There is also a tool to assist in “restoring the workplace following a harassment complaint”.

• For those who are tasked with investigating the allegations, there is an elaborate investigation guide that walks through the entire process, step-by-step, giving hints and suggestions along the way. The guide contains suggested wording, definitions, and checklists (checklists!) for the investigators, as well as for those who are tasked with overseeing the investigation.

There is no doubt that the Treasury Board information is incredibly well-sourced, well-written, and thorough. In fact, if I was back in university writing a paper on workplace harassment, this Treasury Board section on “Healthy Workplaces” would be a one-stop shop for an excellent paper.

So why, in the face of all this great information, are workplace investigations still so difficult to do well? [2]

Here’s the rub:

Workplace investigations are messy. They veer off the checklist and into uncharted territory faster than you can flip to the right page of the toolkit. Sometimes you spend more time off-roading than on the nicely paved well-written superhighway, and it takes a lot of maneuvering to get back on to the asphalt.

Sometimes, well actually most times, the facts of the case don’t always fit nicely into a checklist, nor do the humans who are attached to those facts. Plain and simple, because a harassment investigation involves two or more humans, things have a tendency to, well, get human. People change their minds, people forget things, people remember things, and yes, sometimes people decide that not telling the truth is a better course than telling the truth.

Often, harassment investigations are not being done in isolation, and there are grievances or other interventions or processes going on in the background. Sometimes there have been other harassment investigations involving the same players, sometimes for years, and sometimes those investigations or processes are still ongoing.

Madam Justice Strickland of the Federal Court in Warrant Officer Timothy Andrews v. Attorney General of Canada (2015 FC 780) dealt with this issue of procedural loops in situations where there are grievances, harassment investigations and human rights applications. In this case, the Court was asked to judicially review a decision of the Canadian Human Rights Commission (CHRC) that had declined to deal with the applicant’s complaint as he had not exhausted the internal grievance or review procedures.  The grievor described that he had “spent years attempting to satisfy the [Canadian Forces] grievance system and acted in good faith including through a CF led biased and fatally flawed investigation and ensuing administrative investigation report.  He characterizes [it as]as cyclical, absurd and unreasonable…”[3]

Although Justice Strickland did eventually determine that the process was not an “endless cycle” as the grievor had indicated, she did acquiesce that “there was a lack of clarity regarding the relationship between the harassment and grievance process.” She went on to that that this “may well have contributed to the prior delay and procedural missteps in this matter.” [4]

Is there an app for that?

Back to my original question. Although there is excellent information available for federal employees and armchair investigators through the Treasury Board website, producing an app for workplace investigations would be a futile endeavor. There are simply too many twists and turns, decision points and judgment calls during the course of an investigation to hand the process over to an app developer.

The investigators that I work with at Rubin Thomlinson LLP work to maintain four pillars in our investigations: fairness, timeliness, thoroughness and confidentiality. Working within these parameters makes our job a little easier because we all understand why these priorities are so important to our clients.  But even full-time workplace investigators have days where the “people” part, or the “multiple processes” part, or the “new allegation part” makes it challenging and hard to stay the course. We do have our own checklists, but these are backed up with experienced colleagues in the firm who will help us deal with investigative roadblocks and help us get back on the highway.

There are many days that I wish that the investigation in front of me was as simple as the checklists and guides that are available to anyone who knows their way around Google. But I also know that the only way to produce a fair, timely, thorough and confidential report for a client that meets their needs in determining what happened within their workplace is to use a thoughtful, experienced, adaptable and neutral human investigator.

Jennifer White

About the Author: Ottawa employment lawyer Jennifer White conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, and other problematic workplace behaviour. Jennifer also provides workplace investigation and human rights training to staff at all levels.

[1] http://www.tbs-sct.gc.ca/psm-fpfm/modernizing-modernisation/stats/ssa-pop-eng.asp.

[2] For a recent example of an investigation gone wrong, please see my previous blog as well as this Rubin Thomlinson Workplace Investigation Alert. on Shoan v. Attorney General of Canada (2016 FC 1003)

[3] Paragraph 30 of Andrews v. Attorney General.

[4] Paragraph 54 of Andrews v. Attorney General