Workplace discipline and harassment investigations can be frightening for both the employer and the person filing the complaint. There is a lot of misunderstanding regarding the process involved, what gets looked at in terms of “evidence”, and what happens to the various parties (victim, accused, employer).
First, we must ensure that the complaint is filed properly. “No-name” complaints – anonymous letters to management stating that “harassing behaviour” is happening – are not acceptable. Yes the employer does need to be aware of the morale in their workplace. However, employees need to understand that unless there is a formal complaint, complete with names and details, the employer is very limited as to the steps that can be taken. It is actually a requirement of the Occupational Health and Safety Legislation.
There may be cases where a complaint is filed and the victim doesn’t know who is responsible, for example personal items disappear or are tampered with, or an email account gets “hacked” and it is obvious that the email account owner is not the person sending the harassing message(s). The investigation process should be able to uncover that information and the complaint would still be considered valid.
For most workplace investigations, the employer would hire an Independent Human Resources Professional (such as myself). It is important to note that under the HRPA regulations, only designated HR Professionals (those with CHRP or CHRL or CHRE credentials) can perform workplace investigations.
In some cases, the employer could consider hiring a licenced Private Investigator or even the Police to assist in the investigation, as these persons have the ability to access information outside of the workplace that may not be available to Independent HR Professionals. Police should always be involved in cases where physical violence has occurred (also a requirement under the Act).
The Investigator would review the complaint, and the person who filed the complaint would be interviewed as the first step in the process. Any other employees or witnesses named in the complaint or identified through the investigation would also be interviewed. Any records such as emails, time sheets, schedules, company policies, notes from disciplinary meetings, etc. would also be reviewed, but only those records directly related to the complaint.
The “evidence” is then compiled into a report that goes to the employer, and the report would only indicate whether or not the investigation found merit to the complaint and which laws or policies may have been violated. If requested to do so, the investigator could also provide suggestions on disciplinary action (based upon the employer’s policies) and recommendations on how to avoid these situations in the future (revisions to or creation of new policies, changes in procedures or reporting structure, etc.).
If it is determined that there is merit to the complaint, employer would be required to discipline the party(ies) involved based on the severity of the complaint and in keeping with the employer’s policies on discipline.
If there is no merit to the complaint, then we need to determine whether this is just a misunderstanding or misinterpretation (i.e. actions or behaviour that is not actually harassment) or was the complaint filed in bad faith?
Bad faith complaints undermine the integrity of the harassment legislation and the morale in the workplace. If it is determined that a complaint was filed in bad faith, the complainant could lose their job. In addition, the employer could sue the complainant for the cost of the investigation, which is usually significant.
It is important to note that an investigator only works with facts, and does not have the power to impose any penalty on either the employer or the employee(s) involved. Unless there is police involvement in a serious and/or violent act, no one is going to jail. The Ministry of Labour could fine the employer if there are repeated infractions or the employer refuses to deal with complaints properly. The courts and lawyers could also be involved and the court may impose penalties based upon the common law precedents.
