While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
Yesterday, the Civilian Review and Complaints Commission for the RCMP (CRCC) released its findings from its investigation into workplace harassment, bullying, intimidation and sexual harassment in Canada’s national police force.
This was, in essence, a follow-up investigation, ordered by the Minister of Public Safety, to examine whether or not recommendations made by the CRCC in 2013 had been successfully implemented. A copy of the CRCC report can be found here.
Also released yesterday was a report by former auditor general Sheila Fraser into how the RCMP handled harassment complaints by four female employees. The report, found here, was completed by Ms. Fraser in March, but not released by the Minister of Public Safety until mid-May.
These reports come at a time when the public is also waiting to hear decisions on whether a $100 million class action settlement for sexual and gender-based harassment in the RCMP will be accepted by the courts, as well as the current Auditor General’s report on whether or not the RCMP’s mental health programs are sufficient for their members.
It is also just as the RCMP is waiting for their new Commissioner to be announced by the Trudeau government, and the National Police Federation is awaiting certification to be the first union for the members of the RCMP.
Findings Related to the Current RCMP Harassment Processes
For those of us who are brought in to investigate complaints of workplace harassment, some of the findings of the CRCC report are hardly surprising:
- Abuse of authority remains a “significant problem”
- Sustained and comprehensive measures to deal with harassment have not been introduced
- There is a poor track record in the organization for implementing change
- The definition of “harassment” is not understood, and irrelevant factors may be considered by those who are tasked with determining which complaints go forward
- Harassment complaints are not being screened, which may “exacerbate workplace conflict”
- There is a division of roles and responsibilities between the investigator and the decision maker in harassment complaints, which creates the potential for arbitrary decision-making.
- Decision makers are “routinely” applying the wrong legal tests, which is almost invariably to the detriment of the complainant
- There is inadequate training for decision makers.
Procedural Recommendations for the Future
The CRCC’s recommendations for administrative change to deal with these findings are: to bring in civilian experts in the areas of human resources and labour relations, to include management skills as promotional criteria and institute leadership development programs, to increase civilian governance and oversight, to adopt a simplified definition of harassment and to develop clear and streamlined harassment policy documents. They have also recommended in-person harassment training and a change to policy which would allow the screening of complaints by applying an appropriately broad and simplified definition of harassment.
Workplace Investigation Concerns
Ms. Fraser’s report highlighted some of the shortcomings of the RCMP’s workplace investigations into the four cases that she was tasked with examining. First, she points out, the officers tasked with these investigations came from the same Division as the complainants. This, she said, led to concerns about their objectivity towards both the complainant and respondent:
“This perception is exacerbated by the fact that within a Division, many members know each other directly or indirectly. The perception of bias is further reinforced when, even in cases where allegations are substantiated, the sanctions served to the harasser for his or her inappropriate behavior are deemed to be minimal by the employees who view harassment as a serious problem”.
Ms. Fraser also found that:
- Investigative reports did not include any analysis or recommendations by the individuals who had conducted the investigations; the operational decision-makers were asked to conclude the matter without being provided any analysis by those who completed the investigation.
- Each of the investigations took approximately 12 months to complete, an extended time frame which she found could “inadvertently affect working relationships”, make it difficult to re-establish a healthy workplace, and provided more opportunity for retaliation to take place.
- There seemed to be a discrepancy in the way that some allegations were captured or characterized, which may have had the effect of minimizing the scope and/or impact of the behaviour.
- In some instances, an extensive amount of investigative time was spent looking into the complainant’s past relationships.
- Lastly, Ms. Fraser found that the “fragmentation of allegations” meant that the broader picture was lost and that the fragmentation meant that investigators and decision-makers were unable to “answer the very fundamental question of whether or not an individual was exposed to a workplace environment that was unhealthy.”
Workplace Investigation Recommendations for the Future
In Ms. Fraser’s recommendations, she supports the establishment of an independent investigation process under the direction of a central authority. She recommends that this unit be led by experts from outside the RCMP and that they report to a Board of Management. She suggests that this unit needs to ensure the confidentiality of complainants as well as provide a mechanism for accepting anonymous complaints.
The CRCC has also made some key recommendation for future workplace investigations in the RCMP. For those of us in the workplace investigation field, they have offered hope for the future of addressing harassment in the RCMP:
- That the RCMP retain skilled, competent, and dedicated administrative investigators (not uniformed members), who are independent of the chain of command, to conduct harassment investigations.
As experienced and professional workplace investigators know, independence is fundamental to any investigation. The parties need to be certain that the primary role of the person tasked with their investigation is to gather evidence and make a determination based on that evidence. It needs to be clear that the investigator has no vested interest in the outcome of the matter and that the focus of the investigation are the facts and very little else.
We know that one of the reasons that organizations often look to retain external investigators like those at our firm is because we bring exactly this independence and neutrality. Having no vested interest in the outcome means we can make tough decisions without a concern about how these might reflect on us in the future.
- That the RCMP amend its harassment policies and procedures to mandate the investigator to make findings with respect to issues of credibility and whether or not the harassment policies have been breached, and to report these findings to the decision maker; and to mandate the decision maker to decide whether or not to accept the investigator’s findings and to make decisions with respect to whether any remedial and/or disciplinary measures should be imposed.
Professional workplace investigators know that making a determination of credibility of parties and witnesses is a vital part of almost all harassment investigations. In many harassment situations, there are few witnesses to the event, and the investigator must choose between multiple versions of an incident. Investigators must make an assessment of the testimonial trustworthiness of witnesses, based on a combination of honesty and reliability.
As workplace investigators at Rubin Thomlinson LLP, we are most often asked to make factual findings and then conduct an analysis as to whether the findings result in a violation of an applicable policy. Sometimes, however, we are also asked for our input into what steps, if any, the organization should take in light of the conclusions in our report. In this sense, they are seeking input into their own decision-making phase. Our clients recognize that throughout the investigation we may have come across some helpful information that could help the decision-maker in determining an appropriate organizational response. In these situations, we are happy to offer our professional opinions on possible resolutions.
- That the RCMP ensure that Divisional Commanding Officers receive ongoing, classroom-based training on decision-making, specifically in relation to the assessment of workplace harassment complaints, including with respect to the appropriate legal tests to be applied, and stereotypes relating to the conduct of victims of harassment.
Executing a solid workplace investigation practice requires continual training on best practices, an ongoing review of legal decisions, as well as consistent self-reflection to ensure that the investigation process is always done fairly, thoroughly, quickly and confidentially. For example, we have learned that in some cases taking a trauma-based approach to interviewing complainants may garner much better evidence than an alternate approach. These tools and approaches are vital to ensuring that the investigation process, as well as the results, are accepted by the parties. At the very least, even if the results of the investigation are not what one, or either, of the parties had hoped for, we strive to ensure that the process was unequivocally fair to both sides.
We have been teaching our basic and advanced investigation courses for many years, and yet every time we teach we learn something new from our participants: a new technique, a new hurdle to overcome, or ideas on how to overcome a particular investigation dilemma. All of our trainers are investigators as well, with a keen understanding that one of the best tools in overcoming the solitariness of being an investigator is the sharing of ideas. The CRCC’s recommendation for classroom-based training seems to reflect an understanding of this reality.
Although it is unlikely that the findings of both Ms. Fraser’s and the CRCC’s investigation came as a surprise to many, the recommendations, especially as they pertain to workplace investigations, are clearly right on the mark for dealing with harassment in the RCMP.
There is no doubt that it would be a bold and brave step for the RCMP to implement these much-needed, fundamental changes to dealing with harassment within their ranks. Those of us in the workplace investigation field who have been watching the RCMP harassment story unfold for years now, know that 2017 is the exact time that we need our police force to be bold and brave.
About the Author: Ottawa-based lawyer Jennifer White has extensive experience in police labour relations and harassment issues. Jennifer 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.