■■ A worker who alleges workplace harassment and the alleged
harasser, if a worker of the employer, are informed in writing
of the results of the investigation and of any corrective action
taken or to be taken as a result of the investigation.
According to Ontario Ministry of Labour statistics, within
10 months of Bill 132 there was a 132 per cent increase in
harassment complaints and a 114 per cent increase in sexual
The requirement that the employer investigate “incidents” of
harassment, even in the the absence of a complaint being brought
forward, has had the most significant impact and resulted in a mate-rial
increase in the number of investigations being undertaken.
In my practice I have felt these changes as well. I am regularly
dealing with issues of harassment and sexual harassment either
as an investigator or as counsel to employers, and increasingly to
individuals who are participating in workplace investigations who
want to understand the process and how things will unfold.
As a lawyer, my focus is on the the law, ensuring compliance and
that best practices are followed in an investigation. I have become
increasingly aware of the impact that investigations are hav-ing
on day-to-day activities in the workplace and the individuals
involved. In many cases, respondents are placed on “administrative
leave” pending the outcome of an investigation, which can on occa-sion
be for a period of several months.
What happens when the investigation is over and everyone has
to go back to work? What is being done to assist the workplace
parties in returnng to a normal, productive working environment?
As a starting point, investigations need to be commenced and
finished (with reports delivered) in a timely fashion. In addition,
following best practices and treating the participants with respect
and creating an environment where they feel comfortable and can
tell their story is important.
As counsel to respondents, I have dealt with situations where
investigations have gone wrong. Recently I have seen cases where
the investigator sees their role as one of gathering evidence to sup-port
the complaint rather than that of finding our what actually
happened. This may be in response to the news headlines which
can result in an underlying bias. This can be dangerous and shut
down important areas of inquiry and follow-up which hampers
gaining an understanding of what ocurred. It can lead to deci-sions
that result in costy legal proceedings, and in the worst case
scenarios, court awards of significant damages. Sometimes an
investigator can appear to follow best practices, but lack the essen-tial
skills of a good investigator.
Those skills or “hallmarks” of a good investigator include the
■■ Is a good listener.
■■ Does not jump to conclusions or prejudge the issues.
■■ Embodies compassion and empathy.
■■ Has an understanding of the psychological dynamics of
■■ Is thorough and uncovers all information necessary to make the
proper decision and ensures conclusions.
■■ Has an understanding of applicable law.
■■ Has the ability to assess credibility.
■■ Is fair, objective, neutral and unbiased.
While a lot of investigations may be compliance driven, it is
important to not lose sight of what can be accomplished with a
well conducted workplace investigation. First, and perhaps most
importantly, you can gain an understanding of issues that are
adversely affecting the workplace and address them. Second, if the
complainant and respondent believe that they have been heard
and the process fair and impartial, it is more likely that the com-plaint
can be dealt with in a manner that will allow the workplace
issues to be resolved/addressed with the least amount of disrup-tion.
Third, if difficult personnel decisions need to be made as a
result of the findings of the investigator, a respondent who believes
that the process has been fair and proper, and that he or she has
been heard, may think twice about litigation. And fourth, if litiga-tion
does occur, a proper investigation will increase the likelihood
that a decision made in its wake will ultimately be defensible at
trial, defeat claims of bad faith and avoid awards of aggravated
and/or punitive damages. n
Melanie Reist is a lawyer and mediator at Morrison Reist
buzzfuss / 123RF
Actress Alyssa Milano was one of the first celebrities to use
the #MeToo hashtag
SOMETIMES AN INVESTIGATOR
CAN APPEAR TO FOLLOW
BEST PRACTICES, BUT LACK
THE ESSENTIAL SKILLS OF
A GOOD INVESTIGATOR.
16 ❚ NOVEMBER 2018 ❚ HR PROFESSIONAL