Nafisah: Welcome to Morning Commute with Miller Thomson. You’re listening to Episode 1.
Welcome and thanks for joining this Labour and Employment episode of Morning Commute. I am Nafisah Chowdhury, a partner in the Labour and Employment Group in Toronto. And I am here today with Gita Anand, a senior lawyer who recently rejoined Miller Thomson after spending three years as a vice chair of the Ontario Labour Relations Board. Gita is an experienced workplace investigator. So let’s get started.
Recently there has been a greater statutory emphasis on harassment and violence in the workplace. We see it in our practice. Then employers are often left wondering what to do when faced with a harassment complaint. In this podcast Gita and I will be discussing communications relating to workplace investigations before, during and after the investigation.
Nafisah: Gita, thanks for coming today.
Gita: Great to be here.
Nafisah: So how important are employer communications when conducting workplace investigations?
Gita: Nafisah, communications are critical. If I were to point to the single most error employers make it would be poor communications. Common errors are: not saying enough or saying too much, not checking expectations and failing to keep employees apprised during or after the investigation process.
Nafisah: What are the key points when communications are needed?
Gita: From a process perspective key communication points are: when the complaint is brought forward, when the complainant is interviewed, when the respondent is apprised of the complaint and interviewed, when witnesses are contacted, after the investigation report is submitted and following the completion of the investigation process.
Nafisah: Thanks. So let’s start with when the complaint is brought forward. What happens then
Gita: When the complaint is brought it is important to ensure the policies are followed. Employer policies ideally ought to ensure that only those who need to know are made aware of the complaint. Informal channels of communication, which broadly distributed information about complaints, raised concerns about breaching both privacy and reputational rights and enabling potential witnesses and participants to share their recollections. Repeating allegations widely, including on social media, can attract legal liability and responsibility for damages. There are many examples of employers miscommunicating allegations against employees. What we know is that complaints should not be broadcasted, nor should participants be named, nor should the existence of an investigation be mentioned. For example, two recent arbitration decisions highlighted the circumstances where a university breached a respondent’s rights in communicating about the investigation and in both cases damages were awarded to the griever.
Nafisah: That’s a very important consideration to keep in mind. Now what about the point where a complainant is interviewed?
Gita: The interview of the complainant is a critical step in the investigation process as the investigator has an opportunity to learn about the full scope of the complaint, the complainant’s evidence and to assess the complainant’s credibility. By way of communication the investigator must outline the process to the complainant advising of a number of important points such as maintaining confidentiality of the complaint and the process, and if the complainant has a support person seeking the agreement of the support person to maintain that same confidentiality. There should be discussion as to what information the complainant will receive after the investigation concludes and those questions may include whether the policy provides for disclosure of the report or whether outcomes will be disclosed. There should also be a discussion about expected timelines so that expectations could be managed.
Nafisah: Thanks. So I think it’s fair to say that there are a lot of important considerations for employers to consider at that stage. Do the same considerations apply in communications with the respondent?
Gita: Communications with the respondent are slightly different. First the respondent must be notified about the complaint well in advance of the interview. Announcing at an interview that the respondent is under investigation is not appropriate because such a process denies the respondent a chance to understand the nature of the allegations, to look for any relevant documents or to coordinate the attendance of a support person. While employers express concerns about retaliation if a respondent is informed too early these concerns ought not to effect advance disclosure since, in my experience, retaliation or reprisal is rare in the investigation process. As well, the risk of retaliation can be reduced by cautioning the respondent of the requirement not to retaliate or discuss the investigation with others, and to advise the complainant what to do if the complainant has concerns about retaliation. Respondents should be told in a timely way that there is an investigation. They should receive particulars of the allegations being made against them. They should be advised of support available and a fair and thorough process.
Nafisah: Now is there a best practice as to how information should be communicated?
Gita: Yes there is. These messages are important and rather than verbally they should be communicated in writing. Oral communication may be imprecise and may not be processed at the time it is given. Information may be lost or tuned out if orally given. The better practice is to set out messages in writing and preferably not just by email. The allegation should be set out in writing along with confidentiality cautions, obligations against reprisals and details of the investigations.
Nafisah: So we’ve talked now about communications with the complainant as well as with the respondent. Let’s turn to communications with witnesses. Are communications with witnesses the same?
Gita: Similar but not identical. It is critical to emphasize to witnesses that the complaint is not against them. However, they must be cautioned very clearly about confidentiality and privacy obligations, again in writing. Witnesses should be provided with the name of someone they can approach to answer their questions. Experience shows that witnesses are likely to share information about their involvement in an investigation despite all cautions given. There’s a tendency to gossip about these matters.
Nafisah: Yes there is and I think in our practice we have seen that from time to time so it’s important to try and do what we can to avoid a situation like that occurring. Now let’s turn next to once the investigation report is submitted. What happens then?
Gita: The employer may need time to read the report, seek clarifications on points and make decisions. Depending on what the employer’s policy states the employer must determine what information must be shared to comply with the relevant policy. Collective agreement provisions, privacy obligations and to ensure basic fairness. The employer must also decide how that information will be shared. This process may take time. It is important to advise the complainant and respondent what is happening so that stress and concern can be minimized.
Nafisah: Thanks. Now let’s turn finally to once the process is completed. What communications occur at that stage?
Gita: At that stage, which is the final stage, it is important to express appreciation to those who participated and advise them that the employer is taking this matter seriously. A short written message should be sent to this effect. If certain information cannot be communicated, particularly to witnesses, perhaps for privacy reasons, the message should say that. The employer might also assure participants that the employer will take any action it determines is appropriate in the circumstances. So while there may not be detail about what happened it is usually effective to demonstrate due diligence, communicate appreciation and provide closure. Saying nothing tends to be unsatisfactory.
Nafisah: Makes sense. So now Gita as we draw to the end of our time do you have any concluding thoughts?
Gita: The investigation process provides an opportunity for employers to communicate to employees positively about the organization’s processes including responsiveness, adherence to policies, professionalism, fairness, support and accountability. Communicating appropriately of the touch points we’ve covered will hopefully serve to build trust in the process and improve the outcomes of investigations.
Nafisah: Thank you so much Gita for all of your insight. I know I have enjoyed our discussions and I hope our listeners have as well. Thanks everyone for tuning in.
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