A Threshold Assessment of workplace complaints may be all that’s needed
In recent years, workplace investigations have become more common and they may be expected whenever a complaint is received, but recent case law provides an important reminder to employers and independent investigators that it’s prudent to pause and ask, “does this issue really call for a full-fledged investigation?”
A preliminary assessment of complaints, often referred to as a “threshold assessment”, should be done before launching a full investigation into workplace harassment or other misconduct matters. This can be done internally by the employer, but it may be wise in some circumstances to have an external investigator apply their expertise.
A threshold assessment asks the question: “even if everything in this complaint is true, would it amount to workplace misconduct or workplace harassment, as defined in legislation or policy?” Some complaints do not even make out a prima facie case for a policy violation. Some are petty criticisms of valid workplace policies or practices. Some are objections to legitimate management practices. Some are the result of unfounded rumours with no substance behind them – as demonstrated in a recent case.
If a complaint meets the threshold, it will proceed an investigation to determine the facts and outcome. In certain circumstances, only some complaints meet the threshold, and others are dismissed – reducing time and resources for the investigation.
If a complaint does not meet the threshold, there may be other resolution options to minimize the cost and impact. There may also be circumstances in which the employer still chooses to investigate to show employees their concerns are taken seriously.
A thorough and impartial threshold assessment not only saves the employer money, but it minimizes disruption in the workplace and expedites the resolution process. Instead of interviewing multiple parties and witnesses, aggravating conflict, and potentially stirring up the rumour mill within the workplace, some complaints could be dealt with more swiftly.
In fact, in a recent arbitration decision, the employer was rebuked for failing to conduct a preliminary inquiry before launching a wide-ranging investigation that ultimately caused the employee “foreseeable and avoidable harm.”
In this case, the employee – a registered nurse – was suspended and investigated for months after the employer received “generalized accusations” that the employee was disrespectful, prejudiced, and “put community members’ health at risk.” Claims were made that the employee was racist and engaged in systemic discrimination. These complaints, many of which stemmed from social media posts, were amplified by local elected leaders.
The employer claimed they proceeded to immediate suspension and investigation of the employee because of the letters they received from elected officials.
The ensuing investigation took 81 days, consisted of 27 witness interviews, and resulted in a 1,052 page report – to say nothing of the cost to the employer. The investigation found no instances of wrongdoing or discriminatory conduct by the employee.
The Arbitrator noted that while accusations of racism, discrimination, and malpractice must be taken seriously and an employer cannot simply deem them unfounded without any inquiry, the employer’s response in this case was overzealous and skipped a necessary step: a preliminary inquiry.
The Arbitrator stated: “The employer erred by failing to conduct a preliminary inquiry” to obtain particulars and assess if there was any validity to the vague complaints in the first place. Had the employer untaken a preliminary assessment, “it would have swiftly discovered that [the elected official] was orchestrating his own campaign” against the employee and “many allegations involved policy or resource constraints outside the employee’s control.” Further, “no community members emerged to provide credible, first-hand evidence of racism or malice.” The Arbitrator noted: “no one can properly defend themselves against a broad statement that they are racist.”
This case demonstrates that threshold assessments are a best practice and that the employer may be required to carefully assess the substance of the complaint before subjecting an employee to an impactful administrative leave and lengthy investigation.
By conducting threshold assessments, employers can make informed decisions on how to proceed with a complaint fairly and efficiently. Curtis Law can conduct these initial assessments in an impartial way that ensures the employer makes informed next steps.
Indeed, one of the first questions an employer should ask before tackling a complaint internally is: “can our own staff assess this issue without bias?”
This case noted that it is a basic requirement of any fair and impartial investigation that the particulars of a complainant’s allegations be established with the complainant before moving to the next stages of the investigation. Sometimes, a complainant may not be able to speak as freely and openly with a member of the management staff. An external investigator may be the prudent choice.
Even if the complainant’s claims do not meet the threshold, an independent investigator may be better suited to recognize and identify underlying issues in the workplace so that they may be addressed before the issue escalates.
This case reminds employers not to panic and jump too quickly to a full investigation even when they receive a serious complaint – and even when there may be external pressure. We’re available to help you navigate workplace complaints at any stage.
