conducting effective workplace investigationsfasken.cpdlive.net/2018/004-april-17/handout -...

Sarah Graves

+1 416 865 4474

[email protected]

Katherine M. Pollock

+1 416 868 3527

[email protected]

Gillian Round

+1 416 865 5469

[email protected]

Conducting Effective Workplace Investigations

Labour, Employment and Human Rights

April 17, 2018

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Sarah E. Graves, Partner, FaskenKatherine Pollock, Partner, FaskenGillian Round, Associate, Fasken

April 17, 2018

Conducting Effective Workplace Investigations

Agenda

Introduction and Overview

Preparing for and Conducting Workplace Investigations• Developing effective interview skills

The Impact of Bill 132 – Investigating Harassment Allegations

Effective Report Writing and Common Errors to Avoid

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Sexual Harassment in the News

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Sexual Harassment in Canadian News Headlines

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Preparing to Conduct a Workplace Investigation: Best Practices

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Steps in the Investigation

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The Complaint

It is important to recognize when a complaint has been made• A complaint does not need to be formal

When receiving a complaint, get as much detail as possible• Consider getting the complaint in writing or having the individual complete a complaint form

Listen impartially• Let the individual tell their story without interjection and without partiality• Once you have heard the complaint, ask open-ended follow-up questions if required

Determine the nature of the complaint• Does the complaint trigger a statutory obligation or does it relate to internal company policies?

Act immediately• Prompt action will be required, particularly where an investigation needs to be conducted

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Is An Investigation Necessary?Human rights legislation

• Duty to provide discrimination-free workplace• A formal complaint is not required

Sexual Violence and Harassment• Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual

Violence and Harassment) (2016) made significant changes to the Occupational Health and Safety Act • An investigation must be conducted when a complaint of workplace harassment is made or when the employer

becomes aware of an incident of workplace harassment

Termination for just cause

Policy violation/compliance issue

Criminal or regulatory wrongdoing

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Consequences of Failure to Investigate

Damage awards

Constructive dismissal (notice)

Adverse costs award

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Horner v. 897469, 2018 ONSC 121• Wrongful dismissal claim• Employee was terminated following a harassment complaint to supervisor• The harassment allegations were not particularly serious• When the plaintiff made the complaint to her supervisor and stated she

needed to go home, he responded by “saluting her” and saying “goodbye” • Punitive damages of $10,000 specifically awarded because the employer

terminated the plaintiff without investigating the harassment complaint• Takeaway: conducting an investigation into a complaint of workplace

harassment, regardless of severity, can assist in defending claims

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Toronto Community Housing Corp. and OPSEU (2008-0529-0004), Re (2016), 126 C.L.A.S. 296

• The grievor was subjected to a poisoned work environment when rumours were circulating in the workplace that she was engaged in an inappropriate sexual relationship with a supervisor

• The employer failed at various opportunities to investigate, intervene, or act in any concrete way

• Employer met with the grievor to review her concerns and accept her allegations, but required the grievor to file a formal written complaint before it would act

• Employer elected to implement staff training rather than investigate• Grievor awarded $10,500 in damages for breach of the Human Rights Code• Takeaway: Alternative good faith initiatives to address harassment do not make up for a

failure to investigate

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The Essential Role of Planning

Decision-makers are increasingly scrutinizing investigations

Don’t expect perfection, but reasonableness• In determining whether an investigation is likely to

be considered reasonable, planning is key12

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Planning the Investigation

Identify the allegations and Issues

• What specific issues are raised?• What laws are implicated?• What policies and practices are

implicated?

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Planning the Investigation

Immediate Action Items• Who needs to be informed?• Do you need to remove the respondent from the

workplace?• Collective Agreement?• Have you identified the scope and mandate?• Are special skills required? (forensic accountant, IT

Specialist, translator)

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Planning the Investigation: To suspend or not?

Dr. Agostino Pierro v. The Hospital for Sick Children, 2016 ONSC 2987• A number of individuals expressed reluctance to participate in investigation due to fears

of retaliation• Applicant suspended to allow independent investigation to gather evidence fairly and

freely without accusations of interference• Suspension was with pay, short duration, involved applicant doing majority of his work• Applicant claimed his reputation would be damaged if suspension allowed to continue• Held: any reputational damage would not be caused by fact of suspension and the terms

of the suspension were fair and minimal

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Planning the Investigation: Internal or External Investigator?Internal

• Minor issues that can be resolved without discipline or sanction• Policy violations that won’t result in liability

External• Violations of law or policy exposing company to civil or criminal liability• Particularly sensitive issues• Complaint involves senior management• Consider nature and severity of allegations, position of alleged wrongdoer, privilege issues,

cost

Who will oversee the investigation?• In-house, external, or independent counsel?

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Considerations Whether Internal or External Investigator Being Used Neutrality

• Essential that investigator be perceived as fair and unbiased

Expertise• Should have necessary skills and experience

Credibility• Necessary to have authority and credibility to make findings of fact and

recommendations that will be acted upon

Availability • Must be available to promptly investigate

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Before Conducting the Investigation

1. • Review the relevant policy/procedure

2. • Review the complaint and any response

3. • Determine the steps you will take

4. • Identify the evidence/information required

5. • Decide who to interview and the order

6. • Determine the location(s) for the interviews

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The Investigation Stage: Practical Tips

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The Investigation Process: Interviewing Witnesses (1)Team-up if possible

• Having two people allows for better notetaking and a witness

Preliminary matters• Before starting the interview, explain:

• Who you are and why they are being interviewed;• That you want to learn what, if any, relevant information the witness may have• The nature of the complaint• Importance of confidentiality and prohibition on retaliation• That responses should be honest and accurate

What not to do• Do not guarantee that you will be able keep all of the witnesses’ responses or information confidential • Do not threaten criminal proceedings against witnesses in cases involving potentially criminal matters

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The Investigation Process: Interviewing Witnesses (2)Taking notes & witness statements • Written statements from interviewees• Take verbatim notes and type after (if handwritten)

• Do not paraphrase• Do not include commentary or impressions

• Sign and date notes and do not destroy originals

To record or not?• Generally avoid recordings• If going to record, must inform witnesses

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The Investigation Process: Interviewees

Complainant• Get a clear understanding of what happened before, during, and after incidents

Respondent• Must ensure procedural fairness• Respondent must be fully prepared to respond to the allegations the complainant has made• Warn against reprisals • Beware of the ambush

Witnesses• Advise of impartial role in investigation• Share enough information to ensure the interview is effective but do not provide full particulars

unless necessary

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Procedural Fairness: Case LawShoan v. Attorney General, 2016 FC 1003

• “Given the potential for a future application for judicial review … one would reasonably expect that an experienced and impartial investigator would retain his or her notes, correspondence, and audio recordings until well after the time limit for such an application.”

Smith v. Vauxhall Co-Op Petroleum Limited, 2017 ABQB 525

• “Accordingly, when awarding costs, I am inclined to consider the unfounded allegations of sexual harassment and sexual assault…[T]he Defendant continued to rely on them throughout trial. Such conduct, while not warranting a damages award, is still worthy of denunciation given the facts of this case.”

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Developing Practical and Effective Interview Skills

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Practical Interview Skills

Open and close interviews with prepared statements

Avoid script, but prepare questions carefully and in advance of the interview

Control the pace and listen actively

Try the funnel or pyramid technique

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Practical Interview Skills: Funnel or Pyramid Technique

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•Open Phase•Open-ended questions•Learn all relevant evidence the witness has•Encourage the witness to talk•Summarize the answer so witness can give you the facts that might have been left out

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•Clarification Phase•Get the details – 5 W’s and How•Try not to interrupt•React neutrally at all times•Explore basis for interviewee’s conclusion

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•Closing the Door•Get the final answer•Listen to the witness•Exhaust the subject?•Is there anything else?•Have you now told me everything you recall about…?

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Practical Tips: Take Stock and Assess Credibility Regularly Assess credibility of each witness during or immediately after interview

• Note divergences in evidence

Credibility is generally comprised of two considerations:• Honesty: speaks to sincerity, candour and truthfulness• Reliability: refers to mixture of cognitive, psychological, developmental, cultural, temporal and

environmental factors that impact accuracy of perception, memory and testimonial recitation

When assessing credibility, consider:• Demeanor during the interview• Consistency with most of the other evidence and internally• Whether the story is logical• Any possible motive to fabricate an allegation or evidence

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Practical Tips: Take Stock and Assess Credibility Regularly

Gut Reaction – body language, eye contact, hesitation

Credibility and Sexual Violence• Delay in reporting common (time to process)• Inability to recall specifics of all events• Does complainant appear truthful and sincere

Above all, does the person’s story make sense?

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Practical Tips: Handling Difficult WitnessesStay calm and neutral to avoid increasing hostility

Avoid badgering questions but do not avoid asking the important questions

Make it clear that you will end the interview and proceed in absence of his/her evidence if witness is obstructive or refuses to cooperate

If witness avoids a question, make a note and come back to it at a later point in the interview

Listen neutrally to their version of events and don’t cross-examine

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Determining When to Conclude the Investigation

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Concluding the Investigation: When to Say When?Are you able to reach a conclusion on each allegation?

Are you satisfied that the investigation is:

• Procedurally defensible?• Substantively defensible?• Thorough and complete (material witnesses have been interviewed)?

Are you able to come to a determination on credibility for each interviewee?

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Consequences of Flawed InvestigationsImpair or prejudice ability to establish…

• Just cause for termination/discipline• Due diligence under OHSA• Due diligence under Human Rights Code

Consequences include…• Aggravated, punitive, or Code damages (including damages for reprisal)• Penalties from Ministry of Labour under OHSA• Reinstatement in unionized workplaces• Required to hire third party to conduct investigation

Embarrassing reported decision

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Flawed Investigations: Recent Cases

McDonald v. CAA South Central Ontario, 2018 HRTO 163• A lesson on what not to say and do• “[w]ith respect to the situation that happened between yourself and Shala on Thursday, I want

you to know, you dealt with it great, you kept the focus on her behavior (sic) and not the cultural difference, with that said, let’s walk through what happened in the Thursday conversation.”

Doyle v. Zochem Inc., 2017 ONCA 130• A decision to terminate an employee made prior to an allegation of harassment does not

mean an employer does not need to conduct a reasonable investigation• Investigation was “too short, was unreasonable, was not impartial, and ignored advice to

deal with the sexual harassment complaint before proceeding with termination”• Court of Appeal held that trial judge’s award of $25,000 in damages under Human Rights

Code as well as $60,000 in moral damages was not “double counting” as the awards serve different purposes

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The Impact of Bill 132: Investigating Harassment Allegations

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Bill 132 and Investigations Ordered by RegulatorsFocus is on Sexual Harassment

“It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” includes:

• changes to the Occupational Health and Safety Act that aim to promote strong Internal Responsibility (IRS)

New Code of Practice for employers to assist with compliance https://www.labour.gov.on.ca/english/hs/pubs/harassment/index.php

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Changes to the Occupational Health and Safety Act (“OHSA”)

1. • Workplace harassment policy/program

2.• Employer duty to protect workers from

harassment and conduct investigation

3. • Broadened powers for inspectors

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Workplace Harassment Policy/Program

Investigations into incidents or complaints

How information will be communicated during and following investigation

Confidentiality and proper documentation are critical

Reprisal risks

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Duty to Protect & Conduct Workplace InvestigationsEmployers are now subject to enhanced and ongoing obligations to protect employees from sexual violence and harassment

Employer has an obligation to conduct an objective investigation

• Cannot be conducted by alleged harasser or individual under direct control of alleged harasser• Investigation must be “appropriate in the circumstances”• Must be completed within 90 calendar days unless extenuating circumstances

Results of investigation and any corrective action must be communicated to alleged harasser

• Within 10 calendar days• Amount of information to be included depends on circumstances but must indicate what steps the

employers has taken or will take to prevent a similar incident of workplace harassment

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Broadened Powers for Inspectors

Gives Ministry inspector the power to order an employer to retain, at the employer’s expense, an impartial and qualified third party to conduct a harassment investigation

Special teams of inspectors

30-day compliance period

What are we noticing so far?

• Regional inconsistencies • Presenting problems for large employers with locations in numerous regions • Should you consider approaching the Ministry of Labour directly for guidance?

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Update: Other Jurisdictions Following SuitAlberta: Bill 30, An Act to Protect the Health and Well-being of Working Albertans

• Passed December 2017 and takes effect June 1, 2018• Amends the Occupational Health and Safety Act and requires:

• Employers and supervisors to take reasonable steps to protect workers from harassment and violence and to investigate incidents

• Workers to refrain from participating in violence and harassment• Feedback on the new regulations closed on April 9, 2018

Federal: Bill C-65 proposed amendments to Canada Labour Code• Passed second reading on January 29, 2018 and was referred to Committee• Would bring sexual violence within the ambit of occupational health and safety• Employers would be required to investigate, record, and report all “occurrences of harassment or

violence”• Complaints of workplace violence or harassment not resolved between employer and employee would

be referred directly to the Minister for investigation

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Effective Report Writing

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Investigation Report: Components of Report

Components• Executive summary• Background to complaint• Overview of investigation process

• aka “methodology”• Overview of the relevant programs or policies• Allegations and findings• Conclusion – make sure supported by evidence• (If mandated) Recommendation• Mark it Confidential• Mark it Privileged

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Investigation Report: OHSA Requirements

OHSA Investigations: Code of Practice • Written report summarizing investigative

process• Set out findings of fact• Provide a copy to employee or designated

person to take appropriate action

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Best Practices: Report Writing

Write for a third party• Keep your audience in mind• Think of the potential third parties who might read the report and will not necessarily

have the same factual context and background as the investigator

When making credibility assessments, choose language wisely• Words and phrases that can be used when a witness is credible:

• Straightforward; direct; thoughtful; persuasive; logical; forthright; compelling; careful; coherent; clear; without embellishment

• Words and phrases that relate to a lack of credibility:• Evasive; selective; speculative; dismissive; inconsistent/inconsistencies; contradictory;

lack of detail/specificity; vague; appeared rehearsed; incomplete; minimized

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Organize the report for the reader• Consider the flow of the report and how it will make the most sense to

others

Show your process and make sure correct process followed • Showing the process will show whether it was fair, thorough and timely

Just the facts• No opinions • No recommendations unless mandated

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Findings of fact should be tied to the evidence• Reader should not be guessing how a finding of fact was made

Clearly state how an interviewee came to his/her knowledge of the matter

Make sure all relevant evidence is considered

Use definitive language • “I find” or “I have determined” instead of “It is possible” and “Perhaps”

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Use the language in the applicable policy or legislation• Evidence should be tied to the specific language of the policy or law• Example: “I have determined that the respondent engaged in a course of vexatious comment and conduct that

was known to the respondent to be unwelcome.”

Give yourself enough time• Can be a very time intensive exercise

Proof read multiple times

Consider who will receive the report• Will it be distributed to the complainant and respondent?• Will drafts be provided?• Provide in PDF so that it cannot be amended• Mark it confidential and potentially privileged

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Common Mistakes in Report Writing

Omitting reference to evidence because of view that not relevant

Forgetting to “show your work”

Opinions or value judgments

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Common Mistakes in Report Writing

Over-emphasis on similar-fact or character evidence

• Red flag for evidence of bias or prejudgment

Acknowledge existence of both, but let facts discovered in the investigation speak for themselves

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QUESTIONS?

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Sarah Graves• Partner• +1 416 865 4474• [email protected]

Katherine Pollock• Partner• +1 416 868 3527• [email protected]

Gillian Round• Associate• +1 416 865 5469• [email protected]

Biographies

1

Sarah Graves PARTNER

Toronto

+1 416 865 4474

[email protected]

https://www.fasken.com/Sarah-Graves

Areas of Practice

Labour, Employment & Human Rights | Employment Advice

and Litigation

Education 1995, LLM, New York University School of Law

1991, LLB, Dalhousie University

1988, BA, Acadia University

Year of Call/Admission Ontario, 2010

Connecticut, 1995

New York, 1993

Languages English

Sarah Graves' practice is focused on employment law, litigation and human rights. Sarah represents clients on

matters involving employment standards, employment contracts, wrongful dismissal, workplace investigations, human

rights including sexual harassment claims, whistleblower claims, accommodation and disability issues. She conducts

workplace audits and provides strategic and practical advice on class action avoidance. Previously practicing with a

major U.S. law firm as an employment litigator in New York and Connecticut, Sarah’s unique cross-border experience

allows her to offer consistent, seamless strategic planning for multinational clients.

Sarah has assisted clients with investigations including on allegations of discrimination, sexual harassment, employee

misconduct including theft, and whistleblower claims. She also has extensive experience advising on the conduct of

investigations including design, documentation, privilege issues, and report writing.

Sarah regularly conducts training programs for executives, managers, human resource professional and in-house

lawyers on topics including employment standards, conducting effective investigations, human rights and harassment

prevention. Sarah also conducts training programs on Canadian labour and employment law for US and international

clients.

Sarah frequently speaks on managing all aspects of the employment relationship, investigations, employment

standards, wage and hour class actions, international project management and the strategic partnership between

legal and human resources. Sarah also edits the Firm's weekly HR Space Bulletin, as well as Northern Exposure –

Employment Law for US Companies with Operations in Canada, a blog published by HRHero.com.

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Katherine M. Pollock PARTNER

Toronto

+1 416 868 3527

[email protected]

https://www.fasken.com/Katherine-Pollock

Areas of Practice

Immigration | Collective Bargaining | Labour Relations and

Collective Bargaining | Workplace Equity | Labour,

Employment & Human Rights | Employment Advice and

Litigation | Employment Equity | Alternative Dispute

Resolution | Occupational Health and Safety and Workers

Compensation | Human Rights | Employment Standards

Education 1986, LLB, Osgoode Hall Law School at York University

1983, BA (Hons), University of Winnipeg


Languages English

Katherine Pollock advises and represents employers in labour, employment, human rights and business related

immigration matters. Regularly appearing before Federal and Provincial administrative tribunals and the civil courts,

Katherine assists clients with wrongful dismissals, human rights, workers' compensation and employment standards

issues. She is frequently retained to conduct highly sensitive investigations.

A skilled trainer of employees on all aspects of employment and human rights, Katherine also arbitrates cases before

interest arbitrators and in connection with private, rights-based arbitrations.

Katherine has been elected to the Firm’s Partnership Board, she sits on the firm's Diversity and Inclusion Committee,

she is the co-chair of our Pride Network and she is the firm's Gender Diversity Officer.

Recent experience includes:

Negotiating favourable collective agreements with a number of trade unions

Providing strategic advice to employers on transferring employees to Canada on a permanent or temporary basis

Providing solicitor's advice on employment and labour issues in the context of sales of businesses, whether asset purchase or share purchase

Representing employers in courts and human rights tribunals on claims arising out of the complexities of the employment relationship

Overseeing the training of over 1000 employees in "Respect in the Workplace" sessions

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Gillian Round ASSOCIATE

Toronto

+1 416 865 5469

[email protected]

https://www.fasken.com/Gillian-Round

Areas of Practice

Labour, Employment & Human Rights

Education 2016, JD, University of Victoria

2012, MA, McMaster University

2010, B.A. (Distn.), University of Western Ontario


Languages English

Gillian maintains a broad practice, including matters related to employment standards, employment related litigation,

grievance arbitration, labour relations and human rights.

Prior to law school, Gillian earned a Master of Arts in Globalization Studies from McMaster University as well as an

Honours Bachelor of Arts in Childhood and Social Institutions from the University of Western Ontario where she was

awarded the King’s University College Board of Director’s Gold Medal, awarded to the student graduating with the

highest average in the final year of study.

Prior to joining the Firm, Gillian worked as a Legal Research Assistant at University of Victory Faculty of Law and as a

Policy Analyst with the Ministry of Children and Family Development in Victoria, British Columbia.

Gillian summered at the Firm in 2015 and was seconded to The Hospital for Sick Children. She articled with the Firm

in 2016-2017 and joined the Firm as an Associate in 2017.

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