Here are Frequently Asked Questions (FAQ) that are some of the most common about workplace harassment investigations.
Our FAQ on workplace harassment investigations are:
When does a workplace investigation take place?
Whenever there is an incident reported regarding workplace safety concerns. It is the law that every incident involving health and safety has to be investigated in a fair, timely and comprehensive manner. Most physical health and safety incidences (i.e. exposure to hazardous waste, exposed wires, etc.) can take place internally but harassment investigations are usually done by a trained external third party. The reason for this is to ensure fairness and objectivity. Harassment includes sexual harassment, bullying, physical threats, cyber bullying, abuse of power and discrimination based on a person’s race/religion/creed/sexual orientation.
When should an external investigator be used?
When the allegations are of a sensitive nature, such as sexual harassment and bullying. These allegations have significant legal risk attached to them as well and there are two sides to the story that must be sorted out. The risk of doing an internal investigation is that it is very difficult for somebody within the organization to stay unbiased, even if they don’t know either party. The reason for that is that it usually involves a more senior person who could have a career-altering impact on the internal investigator. Also there is the appearance of impartiality. It is important for any investigation that the investigator must not only be impartial but also appear to both parties as an independent adjudicator.
Do allegations have to be proven ‘beyond a reasonable doubt’?
No. Beyond a reasonable doubt is a standard for criminal guilt. A workplace investigation IS NOT a criminal investigation. If a crime has been committed, it has to be investigated by the police and cannot be investigated through the workplace complaint process. The standard for a workplace investigation is the balance of probability. That means that is it more probable than not that the incident took place. The balance of probability is determined by the investigator through analysis of the facts, comparing similarities and differences both of the statements of the parties and witnesses (to either the specific event being investigated or similar events that have happened previously).
In order to determine the probability of an incident, the evident needs to demonstrate that on a balance of probability, the allegation is likely to have occurred. The standard of proof is ‘more likely than not’ and not ‘beyond a reasonable doubt’. This does require the investigator to draw a conclusion based on the facts presented in the investigation.
Does an investigator have to be a lawyer?
No. investigators can be a trained human resources professionals, paralegal or other professionals. Investigators should have the following skill and knowledge:
- Understanding of the principles of procedural fairness
- Knowledge of harassment/workplace health and safety laws
- Training in investigative techniques
- Excellent oral communication skills with the ability to write clear and concise reports
- Active listening skills
- Ability to handle stressful situations
- Understanding of organizational culture and contexts
- Discretion, respect and professionalism
- Ability to judge information impartially and fairly
What is the concept of procedural fairness?
The concept of procedural fairness means that the processes of the investigator are fair and unbiased. In practical terms it means that the procedures used by the investigator in arriving at their decision were fair to all parties involved.
What types of incidences should be reported?
Every incident that you feel has a direct impact on either your or another person’s health and safety should be reported. This includes physical safety issues such as poor work conditions, exposure to dangerous substances and situations that may exist outside the workplace (i.e. a client site, etc.) that can affect a person’s health and/or safety.
What has to be reported varies from province/state to province/state. The following are types of incidences that are common in a number of jurisdictions:
- Bullying and all forms of harassment, including sexual/physical/psychological. This includes incidences of harassment from clients, vendors, colleagues and management.
- Discrimination based on a person.
- Suspected domestic violence that may extend into the workplace.
- Physical safety concerns, including being asked to work in unsafe environments or in hazardous conditions.
- Abuse of authority. Abuse of authority is considered a form of harassment and occurs when an individual misuses their position to undermine a person’s performance or threaten a person’s job or career.
What are my rights if I file a complaint about an incident of harassment/workplace safety?
Once you report an incident, you have the right to:
- Report an incident without fear of reprisals
- Tell your side of the incident and present evidence in support of your story
- Have the allegation investigated by a fair, impartial, and trained professional
- Be accompanied by another person to the interview
- Review all statements to confirm their accuracy
- Access and rebut the findings
What are my rights if I am accused of harassment?
If you are accused of harassment, you have the same rights as the complainant. You also have the right to know the identity of the person making the accusation and the details of the allegation. It is important, though, to remember that you CANNOT take any form of reprisal against a person making an allegation against you. You have the right to a fair and impartial investigation by a trained professional who will sort through both sides of the story to help understand the truth.
What if somebody is making a complaint to retaliate against me or to cut-off a complaint against them?
The standard for establishing a complaint in bad faith to “get” someone is fairly high. It has to be determined that the person knowingly made a false statement for a dishonest purpose. The legal term for this is that the complaint is characterized as vexatious. Vexatious means that the complaint has been made without sufficient grounds to punish the defendant. In such a case the investigator needs to determine that there were no reasonable grounds for the complaint and that the allegation was not reasonable.
What happens during an investigation?
There are usually three stages during an investigation. Once the complaint has been received, an investigator will be assigned to determine its validity. The first stage of the investigation is the preparation stage. The investigator reviews the specifics of the complaint, witness lists and all documentation relating to it. During this stage, the investigator should also review organizational policies, training, etc. to help understand the context in which the complaint was made. The investigator or a representative of the organization will write to both the complainant and the defendant with details about the investigation. At this time, the investigator will prepare an interview plan to obtain information that is relevant to the incident. Interviews will be set up that allows both the defendant and the complainant time to prepare. Interviews with potential witnesses may also be scheduled at either that time or later, depending on the facts of the investigation.
The second stage of the investigation is the interviews. The interview is usually taped for purposes of accuracy. During the interview, both the defendant and complainant are allowed to bring in another person for support. As the investigator takes notes, they will then read the person’s statements back to them for accuracy. If the statement accurately reflects that person’s testimony, then they sign a sheet with the testimony on it validating its accuracy.
The third stage of the investigation is to synthesize all of the facts of the case and make a determination of the validity of the complaint and what should be done to correct the situation. The investigator will write a report that summarizes the facts and details the reason for the decision. This report is presented to senior management who then shares the findings with the defendant and complainant.
How should I prepare myself for an investigation?
The best way to prepare yourself for an investigation is to put together a list of all the details of the incident and documentation to support your side of the story. You may want to write down notes that detail the chronology of events that have happened, along with any notes or materials that are relevant. Remember to stick to the facts of the case. You should bring all documentation and your notes to the interview to help you tell your side of the story effectively.
Is everything I tell an investigator confidential?
Although discrete, confidentiality cannot be guaranteed. Individuals referred to in a complaint have the right to know what has been said about them and by whom. In addition, the final report will be presented to the person within the organization who has initiated the investigation.
What is the idea of proportionality?
Proportionality is a legal concept that applies to the fairness of punishment to fit the offence. For instance if somebody made an inappropriate remark that they may have honestly believed was harmless, firing the person would be not be a proportional punishment. A more proportional response may be a warning and training about what is appropriate behavior. If the person continues the inappropriate behavior after being warned and provided with training, then a tougher punishment may be more appropriate. Proportionality varies from case to case and takes into account a number of external factors such as severity of the incident, potential harm, and organizational culture.
If there are no witnesses to an incident, should I report it?
Yes. Sometimes incidences of workplace violence, especially sexual harassment, do not occur in public in front of witnesses. Quid pro quo, a specific type of sexual harassment where the person in power insinuates that they want sexual favors in return for other types of perks (i.e. promotions, etc.), is very rarely done in front of witnesses and is illegal. In cases where there are not witnesses, the credibility of the complainant and defendant are critical. Other cases that show a pattern of behavior can be investigated to determine the credibility of the parties involved.
Who gets the final report of the investigation?
The final report is normally given to the person within the organization who has initiated the investigation and/or selected the investigator. From there, it is their decision how much of the final report they want to share with the complainant and the defendant.
Is an incident that occurs outside of work (i.e. at a party or social function) still reportable?
Yes. An incident that occurs outside the workplace or working hours is reportable and subject to all of the workplace health and safety laws that govern the workplace.
If WPV is conducting an investigation, why am I not allowed to contact the investigator before the interview?
As a best practice, WPV investigators should not have direct contact with any of the parties to the complaint before the interview process to ensure impartiality. As explained in the question on procedural fairness, the WPV process is in place to help ensure that the investigation is conducted in a fair and unbiased manner.