Published on: August 3, 2022
Both investigators and employers know that over the last few years, the obligation to conduct fair and thorough investigations into allegations of workplace harassment and sexual harassment has become more stringent, and investigation reports are scrutinized more than ever. In addition, recent court and tribunal cases demonstrate that the financial consequences of failing to conduct a proper investigation can put a significant dent in an employer’s budget. For example, in a 2019 Manitoba Human Rights decision 1 the tribunal awarded a complainant $75,000 after his employer failed to take his harassment complaints seriously and conducted a flawed investigation process in which the evidence was improperly weighed. In an Ontario Superior Court case2 that same year, the court ordered an employer to pay $50,000 in aggravated damages, partially due to a failure to investigate harassment complaints.
So as a workplace investigator, how can you avoid making the kinds of mistakes that cost your clients thousands of dollars and immeasurable reputational damage? Below are some common pitfalls to avoid during your investigation.
1. Misunderstanding the standard of proof
Most workplace investigators know that the standard to be used in their investigation is the civil “balance of probabilities” standard. When it comes time to weigh the evidence, however, some investigators forget what this means instead placing an unfair evidentiary burden on the complainant. If you find yourself writing in your report, “There is no evidence that this allegation occurred…” pause and remember that the complainant’s statements are evidence. There is no requirement that those statements be supported by corroborative evidence such as documents or witnesses. It is entirely possible (and even common, particularly in sexual harassment investigations) for an investigator to make a finding that an allegation is substantiated based only on the complainant’s evidence, assuming they are found to be more credible than the respondent.
2. Forgetting procedural fairness
Of course, we all know that investigations need to be fair. Still, sometimes it can be easy to forget the necessary steps to ensure procedural fairness, mainly when an investigator is eager to finish an investigation. It’s vital to remember that both parties must be given a chance to address the evidence of the other; this means that multiple interviews with the complainant and respondent will likely be required. When reviewing the evidence as outlined in your investigation report, ask yourself, “Is there anything in here that either of the parties would find surprising?” If the answer is yes, the odds are that the party has not been given a sufficient chance to address the evidence.
3. Not being trauma-informed
While knowledge of trauma-informed interviewing is not necessary for all cases, in cases of more severe allegations (including workplace violence and sexual harassment), consideration must be given to whether the assigned investigator needs to have a background and training in how to be trauma-informed. Failing to have this training can result in the investigator misinterpreting the party’s words and behaviour during an interview; causing further trauma to the party; or even causing the party to withdraw from the process entirely. If you realize that you do not have the required knowledge to continue with an investigation, you should bring this to the client’s attention immediately.
1 2019 MBHR 13 2 2019 ONSC 1343The consequences of conducting an improper investigation can seem scary and daunting. Still, knowledge is power – if you would like to learn more about how to conduct fair and thorough workplace harassment and sexual harassment investigations, consider attending our online session on Investigating Allegations of Harassment and Sexual Harassment in the Workplace.