Michael Ford (post until Oct. 31/19)
Employment & Labour

Guidelines for conducting unbiased workplace investigations

In the second instalment of a three-part series, Ottawa employment lawyer Ella Forbes-Chilibeck provides guidance to employers on how to conduct workplace investigations.

An employer should act quickly to organize an investigation if an employee files a sexual harassment complaint, says Ottawa employment lawyer Ella Forbes-Chilibeck.

"Don't sit around and do nothing or wait until you have several complaints before you act," she tells AdvocateDaily.com. "It is really important to take allegations seriously, act immediately, and to make sure you’re not in any way creating a perception of condoning such actions.”

There are steps an organization can take to launch an unbiased and thorough investigation as soon as the incident or incidents are brought to its attention, she says, adding one of the worst things to do is brush it off.

The Ontario Health and Safety Act (OHSA) defines workplace sexual harassment in part as engaging in a course of vexatious comment or conduct against a worker where the behaviour is unwelcome, or making a sexual solicitation or advance where the person making it is in a position to grant or deny a benefit to the worker.

In Ontario, the province provides a guide for employers to aid in investigations.

"The first thing that can be done is to get the facts from people who may have witnessed events or those who were directly involved," says Forbes-Chilibeck, who, as the founder of Forbes Chilibeck Employment Law, represents employees and employers in sexual harassment cases and also investigates harassment claims.

"You need to make sure the alleged victim has access to appropriate support," she says. "That’s priority one.”

Forbes-Chilibeck says the next step is to decide who will conduct the investigation, and if it’s determined it should be investigated internally, whether senior management or human resources personnel have "the capacity and capability of conducting an investigation in a neutral and unbiased way."

She says management should retain a qualified external investigator if the organization doesn't have an internal investigator capable of handling the case.  

"My experience has been that oftentimes when it is harassment, which has a broad definition, it may or may not be investigated in-house," Forbes-Chilibeck says. "When it's an allegation of sexual harassment, I think people are nervous and those investigations tend to be referred externally."

She says employers should never offhandedly dismiss any allegations of sexual harassment.

"If you have someone coming to you and making a complaint, that has to be taken incredibly seriously," Forbes-Chilibeck says. She says that if people at a workplace become aware or suspect there is "something going on," an employer has an obligation to investigate, regardless of whether or not a formal complaint has been filed.

"If you're hearing about something, even if the person hasn't formally complained, you may have an obligation to delve further with respect to the incident," Forbes-Chilibeck says.

There must be no bias — or appearance of bias — in the investigator's neutral fact-finding mission, she says. "That is the ultimate test to decide whether it should be an internal or external investigation," Forbes-Chilibeck says.

She says internal investigations must avoid any possibility of a conflict of interest, as it could be problematic if the accused holds a more senior position than the investigator, or if the investigator supervises the alleged victim.

She says the investigator should interview the complainant, the respondent, and any witnesses involved.

The investigator should keep thorough notes and record all interviews throughout the process, and ensure that all information collected is deemed confidential, Forbes-Chilibeck says.

"When I act as an investigator, I typically ask the person I’ve interviewed to review the notes to ensure there isn't anything they would like to add or that there's isn't anything I've misstated in some way," she says.

The investigator also reviews sexual harassment workplace policies and the applicable federal or provincial human rights legislation, labour code, and relevant passages of the OHSA, she says.

The goal of the investigation is to collect evidence and determine — based on a balance of probabilities — whether an incident occurred, and if it did, the report is used to document any procedures, regulations and laws that may have been breached.

The investigator determines whether something untoward occurred in the workplace and it's up to the firm's management or HR department to determine what action is taken as a result, she says.

Forbes-Chilibeck says the complainant and the respondent should be informed of the outcome of the investigation and if any remedial action has been taken.

"That's new," she says. "It used to be that people would often put in a complaint and then never hear about it again. And it would drive people nuts because they would get interviewed, go through all this and then it would almost seem like the complaint would dry up in mid-air.

"They wouldn't even know if the investigation had ever been completed," Forbes-Chilibeck says. "There is now an obligation to complete an investigation, either internally or externally, and then provide details as to whether any harassment was found and what, if any, actions were taken."

She says she often sees a group allegation made because individuals may not feel comfortable to come forward alone.

"Sometimes the harassment has been the worst-kept secret for years," Forbes-Chilibeck says. "I think for some people there's a greater level of comfort in not being alone in bringing their concerns forward."

There is specific language in OHSA that prevents reprisal in the workplace and employers have an obligation to make sure there is no retribution for initiating a complaint or participating in the investigative process, she says.

Stay tuned for part three in the series where Forbes-Chilibeck discusses how to take the lessons learned from harassment complaints to build better workplace policies and procedures. 

Click here to read part one where Forbes-Chilibeck discusses key considerations for employers when dealing with complaints of sexual harassment.

To Read More Ella Forbes-Chilibeck Posts Click Here
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