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Written by: Krishnan Nagarajan, CPHR
An employee’s mental health plays a vital role with regards to his/her productivity and engagement, thus determining whether he/she contributes positively in attaining the objectives of the organization. Harassment/discrimination has a significant impact on one’s emotions/mental health. Hence, it’s imperative for organizations to take care of their employees’ emotional well-being and provide a workplace free of discrimination and harassment.
Alberta Code On Workplace Harassment
The Alberta Human Rights Act prohibits discrimination in employment based on the grounds of race, colour, ancestry, place of origin, religious beliefs, gender, age, physical disability, mental disability, marital status, family status, source of income and sexual orientation. Employers are expected to create an inclusive workplace that respects the dignity of every individual. Employees can also play an important role in creating an inclusive workplace by understanding their rights and responsibilities under the AHR Act. Employers are responsible for ensuring that the work environment is free from discrimination, including harassment based on a protected ground. Employers are responsible for developing non-discriminatory policies and procedures. Any infringement of the AHR Act in the course of employment will likely make the employer liable. Employers have the responsibility to promptly investigate an allegation of discrimination. If an allegation is substantiated, appropriate action, including disciplinary action, must be taken to stop the discrimination. Employers should consider preventative measures such as introducing policies to maintain a respectful workplace.
In this article, we’ll cover as to how to conduct a workplace investigation when a complaint is received, as no investigations or flawed investigations could lead to costly and time-consuming legal process and would have a detrimental effect on the reputation/brand of the organization. Also, please be aware that when such harassment happens during official trips, company parties/meetings outside the regular workplace, it will still be construed as an “extended workplace” under the judicial lens and hence, would call for a proper investigation.
Some complaints could be anonymous. Such complaints are a bit difficult to handle in the sense that we’ll not be able to clarify some details with the complainant nor be able to assess the credibility of the complainant or ascertain the motive behind the complaint. Nevertheless, we cannot ignore a complaint just because it’s anonymous. When a complaint is raised, the onus is on the employer to ensure that a fair investigation is conducted.
Also, sexual harassment complaints normally will not have any witnesses, as such acts would be performed in the absence of a third person. In such complaints, it usually would boil down to one person’s words against another’s. In such cases, the easier way might be to dismiss the complaint stating lack of proper evidence or lack of witnesses or concluding that it is a matter of “he said, she said” and it’s difficult to substantiate. However, we need to understand that only in criminal cases, we need to prove beyond reasonable doubt that the alleged incident happened. In civil cases, all we are looking for is whose version is more likely to be true than not (50% + 1) on a balance of probabilities. The more serious the offence, the more convincing evidence is required.
Once a complaint is received, the first step is to assign an investigator. The investigator needs to be a neutral party and should approach the case without any preconceived notion or favour. The organization needs to decide whether it is going to appoint an internal investigator or external investigator. Internal investigators could be assigned to less serious complaints or one-off incident whereas if the complaint is serious enough and involves senior management and could turn out to be a Public Relations disaster, it would be advisable to go for an external investigator. There are many HR law firms, who are specialized in such investigations.
As soon as a complaint is received and reviewed, we need to ensure that the complainant and the respondent do not work together until the investigation is completed. If possible, they need to be assigned work in different departments/shifts. If not, the organization needs to ensure that at least one of them is sent on leave of absence with pay. It is very important to ensure that the leave of absence is with pay. If we send anybody on leave of absence without pay, it would appear as if we have already made the judgment even before the investigation and that employee could file for wrongful dismissal or constructive dismissal.
During the investigation, some of the factors to consider are the reporting structures between the complainant and the respondent, whether any power dynamics could be at play, and to look for any biases. Generally, people tend to believe that those who occupy senior positions would tend to speak the truth/be genuine in what they say, which may not be the case. We need to look out for physical evidences like CCTV coverage, emails, text messages that could confirm/contradict one’s position. We also need to consider whether the parties involved have any history of such behaviors or complaints raised against them.
When the investigator meets with the parties involved, it is highly recommended to use interview techniques and not interrogation techniques.
The Difference Between Interviewing and Interrogating:
An interrogation is intended to elicit the truth; however, typically, the interrogator approaches the respondent with an assumption of his or her guilt, and often adopts an accusatory tone. In contrast, an interview involves a more conversational approach with the primary purpose of gathering information and assessing the behaviour of the witness. In general, the interview will be non-judgmental, business-like and lacking in skepticism. It is important for the investigator to delve into the details necessary, allow the witness to respond to evidence which contradicts his or her own and, where necessary, to challenge the logic of a witness’s evidence or the objective reality of a witness’s subjective interpretation of events.
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It is always a good practice to notify the persons involved about the time and location of the interview in advance. Once we get the complaint in writing, we need to first meet with the complainant and seek clarifications or ask for more specifics like the time, date, and place of the alleged incident, whether there were any witnesses etc. When we meet with the respondent, we should provide a copy of the complaint to the respondent, as he/she has the right to know what was the complaint about and who made the complaint. We ask for the respondent’s version and get it in writing. We may re-interview both the complainant and respondent if there’s anything that we need to clarify before meeting with the witnesses and getting their statements.
It’s always a good idea to prepare the questions in advance and to ensure that the questions are open-ended questions so that we could elicit as much information as possible from the interviewee. Also, we need to be mindful that we do not put words in the interviewees’ mouth or state our assumptions. For example, instead of asking, “Did you feel embarrassed when that comment was made to you?” we should rather ask, “How did you feel when that comment was made to you?” During the interview, the investigator should be taking notes and also be sitting in a position where he/she could be able to observe the body languages of the interviewee. During the interview, the parties involved may request that a relative/friend or union steward (in unionized environments) need to be present, which is totally fine. However, the investigator needs to make it very clear that all the questions would be directed only at the interviewee and would expect answers only from the interviewee and not from the accompanying person. Also, sometimes, after making a statement, the interviewee might want to retract a statement and request the investigator to remove it from his/her notes. We should be fine doing it but we need to caution the interviewee saying that we could arrive at a decision only based on the evidence what we have in front of us. At the end of the interview, we should make it a point to caution everyone to maintain confidentiality about the investigation and to thank each one for their time.
After meeting with all the parties involved, the next step is to assess the credibility of all those who have been interviewed. We do this by assessing whose version of the story/events is consistent with that of the evidence available, if any, or matching with the witnesses’ statements, whether there is any conflicting proofs/statements, when the person recalls the incidents - is he/she changing the specifics, is there any motive for false complaint, has there been any prior incidents similar to this, is there any vested interests for anyone in the outcome of the investigation etc etc.
Based on these, we arrive at a conclusion. Usually, the conclusion would be one among the following three.
1. Harassment did occur.
2. Harassment did not occur.
3. Unable to substantiate based on available evidence.
At the end of the investigation process, it’s imperative to write an Investigation Report and document it, which includes all the specifics as to when the complaint was received, the dates of alleged incidents, the dates when the interview was conducted, who all were interviewed, what are the evidences considered, credibility assessment, what was the outcome, and what is the recommendation. It is also essential that we contact the parties involved and advise them of the outcome of the investigation. Please find below a flowchart that gives a snapshot of the investigation process.
WORKPLACE HARASSMENT INVESTIGATION PROCESS
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