Many of you who have gone through a workplace harassment investigation may question whether it is worth the trouble. They can be expensive when done by external investigators, may not result in actionable findings and even when they do, solving the overall workplace problem is rarely simple. Even when a termination is the result, it might be just the beginning of new problems like finding a replacement and bringing that new person up to speed – not to mention addressing the negative culture that is often at the heart of the problems that led to the investigation.
Some may ask: Is it really worth doing investigations in a such a detailed, careful way or is a cursory effort that simply satisfies legal obligations enough?
At Curtis Donovan Law, we understand the concerns many employers have with the time, expense, and frustration of workplace investigations.
In our recent blog we wrote about the possibility of avoiding a full-blown investigation by conducting a threshold assessment. The idea is that sometimes the complaints being made, even if true, do not meet the legislative definitions of harassment , violence or sexual harassment, and may not even amount to a prohibited behaviour under the employer’s internal policies such as a Code of Conduct. Doing a threshold assessment may allow the employer to comply with the legislation without conducting a full-blown investigation.
If an employee reports harassment to the Ministry of Labour or a terminated employee alleges that they made a formal complaint but it was never investigated, the employer will have the threshold assessment to show they complied with their workplace harassment program and/ or OHSA requirements to conduct an investigation “appropriate in the circumstances” – a very strong defence.
When an investigation is necessary, the issues will be narrowed and only more serious misconduct gets investigated. When an investigation is not necessary, aside from litigation -proofing management decisions, the employer always learns something useful about the workplace and often this allows management to address simmering conflict that is almost certain to boil over eventually.
A critical value of a threshold assessment or investigation is how well it sets the scene for what will follow. Sometimes the best outcome of an assessment or investigation is that it crystalizes a conflict that may benefit from mediation, training, or some kind of group facilitation process. A good investigator will use the process to gather facts about the deeper context of the issues at stake, the positive and negative relationships in the workplace that will help inform the design and execution of these useful follow-up processes.
Sometimes the conduct alleged doesn’t meet the definitions in employer policies, but reveals problematic work habits including significant levels of incompetence. Incidents of incompetence can manifest as harassment complaints, and while there is no legal requirement to investigate incompetence, wise employers will want to know if there is some serious competency problem that impacts profits or other duties the employer may have. Public service employers such as healthcare, first responders, and municipal government must be constantly attuned to the quality of the services they provide. Ensuring the competence of staff is the low hanging fruit benefit for organizations.
When a thorough threshold assessment and/or investigation is done, and done in a fair way that respects the rights of all involved, this sends the strongest of messages to the workplace and sets the right tone for a high functioning workplace. When people feel they can trust their co-workers and management, they are willing to invest more in the success of the enterprise. The gift of increased productivity and higher quality of service is a frequently overlooked benefit of the investigation regime. The workplace investigation requirements are frequently maligned, but it’s important to remember the legislation was implemented with the goal of healthy workplaces in mind – not simply “compliant” workplaces.
