An employee complaint of potential harassment or discrimination needs to be handled with the utmost care. How you handle it may open your organization to legal liability. Learn 7 mistakes to avoid when conducting a workplace investigation and what the consequences are if it is done improperly.
Employers have a duty to investigate claims of potential harassment or discrimination by an employee. There are two types of investigations that may take place:
1) A Formal Investigation
This is when a 3rd party investigator is hired to come in and conduct an unbiased investigation into the issue like Bridge Legal & HR Services.
2) An Informal Investigation.
A shorter and more informal investigation that is managed by an internal objective investigator. These are common in minor misconduct cases.
With both investigations, interviews with employees who have relevant information need to occur, and a decision on the complaint must be reached. Even if the employee says the complaint is no longer an issue, an employer should investigate and determine if further action needs to be taken.
Always complete an investigation and render a decision.
Here, at Bridge Legal & HR Services, we have seen how not completing an investigation has compounded to cause further, more costly, issues down the road.
7 Mistakes to Avoid
Legal liability is one common consequence of an improper workplace investigation. To minimize your risk of potential future liability, avoid the following mistakes when a complaint arises:
1) Failing To Have an Investigation
Once a complaint is filed, it is always best to investigate. If you do not, you risk showing indifference to the employee and their situation. It also leaves you open to potential further litigation from the employee if they feel they were not taken seriously.
In Ontario, employees who feel that a complaint has not been fully investigated (or investigated at all) can also lodge a complaint with the Ministry of Labour and/or the Human Rights Tribunal.
2) Not Taking Complaints Seriously
Employers should take all complaints (even seemingly minor ones) seriously to avoid the consequences of an improper workplace investigation. One way that employers show they do not take complaints seriously is by having no formal process for filing one.
The proper way to handle complaints is to allow them to be reported in a formal manner and in a safe environment. All complaints, no matter how seemingly small, should be thoroughly reviewed. Actions should be taken if needed based on the decisions reached in the process of the investigation, including discipline for any employee found to have violated the workplace harassment policy.
Not disciplining or providing measures that further deter bad behaviour in the workplace can lead to low morale and allows these actions to continue and potentially increase over time.
3) Treating Complaints Differently
Treat all complaints equally. This means there should be no delay in investigating complaints that you do not deem to be “serious” or “egregious.” It is advisable to have a process that lays out how quickly complaints will be addressed and equally within the policies and procedures laid out in the complaint process or policy.
4) Retaliating Against Employees
Employees should feel comfortable bringing forward a complaint without the fear of retaliation.
Retaliation is when an employer or a fellow employee takes action against an employee for bringing forward a complaint or participating in an investigation.
Examples of retaliation include firing an employee, demoting them, and transferring them to another department. To encourage employees to vocalize potential concerns, employers should have a strict no-retaliation policy that everyone is aware of.
5) Investigations That are Not Detailed or Thorough
It is good practice to investigate employee complaints thoroughly and quickly. Treating complaints casually or overlooking potential evidence may result in no discipline for the offending party and may also create more legal liability for an employer.
Do not reach a decision prematurely. Thoroughly investigate a claim and keep proper documentation throughout. Documentation can include:
- Notes from interviews
- Text messages
- Photos or other documentary evidence provided by the parties
- A finalized report with rationale for any decisions
Consulting with an experienced workplace investigator at Bridge Legal & HR Solutions can ensure that your legal rights remain protected as a business owner, and that a workplace investigation is performed correctly.
6) Lack of Confidentiality
All complaints should be treated with confidentiality. This is to prevent potential retaliation on that employee by others and ensure that all parties’ privacy is protected. A strong policy that manages complaints will be very clear on how a complaint will be treated and ensure the utmost confidentiality throughout the investigation process.
7) Bias in the Investigation
All investigations must be led by someone who is objective. This can be an internal employee or an external investigator. Any bias or conflict of interest in an investigator can colour the outcome of an investigation.
When choosing the person who will lead the complaint investigation, you will want to vet out any potential conflicts of interest they may have. Appropriate investigators can include a Human Resources representative, a lawyer, or an outside investigator.
Considerations for a Proper Workplace Investigation
If you are involved in a workplace investigation, there are many things to consider, and it is best to be prepared in advance before an issue arises. This Code of Practice, published by the Ontario Ministry of Labour, is a great starting place. It provides a comprehensive overview of what should be a part of your policies and procedures.
Ensure that you have answers to the following questions as you start your investigation:
- Who will be leading the investigation?
- What is the employee’s complaint? What is being investigated?
- What evidence do you think you will need to make a decision?
- Whom will you want to interview to investigate the claim?
As you proceed through the investigation, keep accurate records and documents. It will help you in writing your report and ensure that you have a record of the steps taken if you are asked about your decisions after they are made. It is recommended to keep copies of at least the following items:
- Copy of the employee complaint.
- Documents used to reach the decision.
- Notes that were taken during the investigation.
- Witness information.
- Any employer policies and other documents that relate to the complaint.
Additional recommendations on how to conduct a proper investigation include the following:
- Be cautious about how you treat employees after they bring a complaint. Even actions taken to protect an employee, such as removing them from a group where they are experiencing harassment or discrimination, may be seen as retaliation.
- Have a clear anti-harassment and anti-discrimination policy that is easy to understand. These policies should be thorough and also comply with the law. If you are unsure if your policies are compliant, our lawyers at Bridge Legal & HR Services can help.
- Have a defined investigation process in place for all complaints.
Consequences of an Improper Workplace Investigation
Over the past few years, two cases have been decided that highlight the potential consequences of conducting an improper workplace investigation.
In T.M. vs. Manitoba (2019 MBHR 13), an employer had to pay $75,000 in damages to an employee due to the injury to dignity, feelings and self-respect that was inflicted through an improper workplace investigation. There was a delay in processing the complaint and no policy in place to handle workplace harassment complaints.
The Commission determined that, although the employer did not actually perpetuate the harassment, its failure to take reasonable steps to address the employee’s allegations once it was aware of those concerns was a “serious breach” of its obligations and negatively impacted the employee’s well-being.
Employers can avoid a similar outcome by establishing clear policies and procedures, handling complaints quickly, and treating employees with respect throughout the investigation process.
In Czerniawski vs. Corma Inc (2021 ONSC 1514), an employee claimed damages after being terminated. The employer claimed the individual was fired for cause, namely threatening other employees and being insubordinate. The court noted that prior negative acts on the part of the employee had not been brought to the employee’s attention or been the subject of discipline. The court decided the employer did not have just cause and awarded the employee an amount equal to 19 months of notice. To avoid a similar outcome, employers should investigate all incidents as they arise and ensure that investigations are thorough enough to provide a true understanding of whether the standard for just cause is met. Warnings should be a part of your performance feedback. Keep accurate records to back up any decisions you have made.
Contact Our Experienced Workplace Investigation Attorneys Today
The consequences of improper workplace investigations can vary but often include potentially increased litigation costs and negatively affecting a workplace culture if complaints are not appropriately managed. Our experienced attorneys at Bridge Legal & HR Solutions can help ensure that you are conducting as fair of a workplace investigation as possible while still complying with the law. Contact us today at 647-794-5442.