Employment & Labour

Post-investigation issues – what they are, how to handle them

By Todd Humber, AdvocateDaily Contributor

When the ink is dry on a workplace investigation, the job is far from done, says Toronto employment lawyer and mediator Stuart Rudner.

As soon as the report is finished, people will clamour to get a copy of it — individuals and employers alike. If it vindicates them, the temptation will be to show it to everybody, says Rudner, founder of Rudner Law.

He says he tries not to give the report to anyone — resisting the inevitable pushback that results.

“My practice is to advise clients not to give the report to anybody,” Rudner tells AdvocateDaily.com. “In fact, in many cases, I never give the report to my client. I know that surprises many people.”

Instead of handing over the full copy, he will summarize it — because at that point the most important thing is clear communication, so all parties understand the investigator’s conclusion, he says.

“Unless there’s a really good reason to provide the full report, we typically don’t,” says Rudner. “There are many circumstances where you’re just going to do more harm than good.”

Take, for example, a situation where there was an intimate relationship between two work colleagues, he says, followed by an allegation of sexual harassment. In that case, the report will be full of details — intimate details — that management or the company’s owners did not know.

“In most cases, there is a great deal of private information, and there’s no good reason for anybody to see all of it,” says Rudner. “But every party involved should be given, at the very least, a summary of the conclusions.”

Some people think legislation, such as Bill 132 in Ontario — The Sexual Violence and Harassment Action Plan Act — requires everyone involved to get a full copy of the investigator’s report.

“My view is that it does not,” he says. “I believe the Act requires that you notify both parties in writing of the results and if any corrective action is taken. But I don’t think that means you have to provide the full report.”

Employers also need to remember the ultimate goal of the investigation, Rudner says.

“The goal, really, is to ensure that whatever issues were raised are addressed,” he says. “Make sure that your workplace is able to move on, which, of course, is sometimes easier said than done.”

A harassment investigation that ends with a finding of no harassment, for example, might lead to training for employees, so everyone clearly understands what harassment is and what it isn’t, Rudner says.

“You’re probably not going to want to make it a targeted training, but you can have training for the whole workplace, or for that department, or whatever group is appropriate,” he adds.

If the allegations from the complainant are not supported, it does raise an additional question, says Rudner.

“In the current social climate, there’s this view that no one should ever be penalized for making an allegation of harassment,” he says. “Which I think is absolutely true, as long as it’s made in good faith. But if it’s made maliciously or in bad faith, which certainly doesn’t happen often — but it does happen — you want to impose discipline in that context as well.”

If the investigation supports a finding of harassment, then the employer needs to determine what steps to take against the accused. Termination won’t always be justified in these cases, Rudner says.

“Just because there’s misconduct doesn’t mean you can fire someone for cause,” says Rudner, adding that any decision to fire should only be made in consultation with an employment lawyer.

"I wrote the book on summary dismissal — You're Fired! Just Cause for Dismissal in Canada — and I know how complex the law is. A single instance of misconduct, even harassment, will not automatically justify their dismissal for cause," says Rudner.

If termination isn’t warranted, some other action may be appropriate. It could be training, or it could be mediation between employees — whatever it takes to get the workplace functioning properly again, he says, adding they are not mutually exclusive. An employer might dismiss the offender and also undertake efforts to remedy workplace issues.

Employers should also take the time to review harassment policies and procedures, Rudner says.

“Most organizations put these policies and procedures in place because they have to, and often use templates without taking the time to really think about them and the implications of what they say.

"Now, you’ve basically given them a test run. You’ve seen how they worked and if there were any rules or processes that really didn’t work,” he says.

There’s nothing stopping employers from changing policies after seeing their effectiveness in practice, Rudner says. For example, some policies explicitly say, “You will never be penalized” for making an allegation of harassment, which means that even malicious allegations may be protected. Others have specific statements about time frames for investigations and who will conduct them, he says.

“That may not be feasible in some cases. So you want to reassess them after you go through an investigation and make sure there wasn’t anything in your policy or procedure that needs adjusting,” says Rudner.

Another common question is how long a copy of the report should be kept — to which he says he only has one answer — indefinitely.

“My simple recommendation in the day of cheap digital storage is just scan and keep everything,” Rudner says. “But at a minimum, keep the report for at least two years because that’s the limitation period for a claim.”

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