Workplace Investigations in the Wake of #MeToo
By: Miriam Anbar | Published in TLOMA Today>>
Nearly one and a half years after Bill 132 became legislation in Ontario, it is startling to learn how many companies still do not have policies and protocols in place as mandated by the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. In light of the #MeToo movement and countless sexual harassment allegations against high profile people that have been made public in the past few months, it is crucial for organizations to be compliant in all aspects of this legislation.
The following are key points employers must know regarding Bill 132:
- “Workplace sexual harassment” was added to the definition of “workplace harassment.” By now, employers should have reviewed and updated their existing policy on workplace violence and harassment to make sure this new definition is included.
- Employers are required to address harassment through clearly defined mechanisms which include processes, procedures, investigating and reporting;
- A workplace harassment program must be developed and maintained in consultation with the Joint Health and Safety Committee or a health and safety representative;
- Employees and Managers must be properly trained on the above-mentioned program and policies;
- All reports or incidents of harassment require an employer to conduct an appropriate investigation given the circumstances;
- Confidentiality surrounding complaints must be maintained to the best of the company’s ability;
- The employer is obligated to write a report following every investigation of workplace harassment and provide the complainant with a summary of the findings;
- The Ministry of Labour (MOL) can now order an independent workplace harassment investigation at the employer’s expense.
Employers are required to conduct workplace investigations into all incidents or complaints of workplace harassment and inform both the worker and alleged harassment of the results.
Our firm receives many calls from employer clients who are faced with the onerous task of having to conduct a workplace investigation. Often, they simply do not know where to begin.
Here are some key takeaways for employers when conducting a workplace investigation so as to ensure compliance and minimize liability:
Act swiftly – Time is truly of the essence when it comes to acting on a report of harassment, violence or sexual harassment in the workplace. Memories fade and accounts by witnesses can be muddled if you do not conduct a timely investigation.
Document everything – From the date someone came forward to report an incident, to who was present as a witness that could be interviewed down the line.
Maintain confidentiality – Whenever possible, do your best to keep your paperwork locked up and share only what is absolutely necessary to the involved parties.
Informal versus formal – Harassment investigations can range on a spectrum from simple and straightforward, to quite serious and complicated with many witnesses and a lot of “he said, she said.” In some cases, the complaint may involve a senior level or executive employee. In these situations, it may be best to have a professional guide you through the process or perform the investigation on your behalf.
Review company policies and training – It is important to know whether the involved parties had been trained and/or signed off on harassment policies that were in place at the time the incident occurred.
Remember the 5 W’s during the interview stage – Who are you interviewing? What techniques and types of questions will you ask? When will you perform your investigation? Where will you conduct the interviews to ensure privacy? Why are you investigating? Be prepared to explain the purpose of the investigation to all parties involved by way of an opening statement to set the stage for obtaining the most important information.
Actively listen – Encourage the interviewee to do most of the talking and most importantly, document as much of the information you are receiving as possible without paraphrasing.
Be impartial – Do not prejudge the alleged harasser. She or he must be interviewed on their version of events and have the opportunity to answer the same questions as the complainant and witnesses.
Make a determination – Based on all of the facts gathered and interviews conducted, make an investigative determination as to whether the complaint or misconduct has been substantiated.
Complete an investigation report – Several elements comprise the investigative report: context for investigation/background information; scope and purpose of the investigation; summary of the complaint/allegation; actions taken; summary of the findings; and conclusions (including reasons for the conclusions). This list may vary depending on whether you are conducting an informal investigation versus a formal one.
The outcome of the investigation will depend on many of the factors listed above and then some. Be extremely cautious not to make a rash judgement when determining the outcome of a workplace investigation. If you are unsure as to whether or not to terminate an employee due to a finding of harassment or sexual harassment, consult with an employment lawyer. Many employers make the mistake of terminating with cause without realizing the high threshold required to prove so in a court of law.
On the surface, these steps may appear to be elementary; however during the course of an investigation and upon interviewing multiple people, it is easy for a manager to get side-tracked and overwhelmed. The process itself is critical to prove that your organization did its due diligence down the line. Finally, be sure to document everything every step of the way!
This article provides general information and should not be relied on as legal advice or legal opinion.
Special thanks to Legal and HR Assistant Lisa Cavuoti for assistance with the research and writing of this article.