Acts of discrimination and harassment in the workplace are illegal (Human Rights Code and the Occupational Health & Safety Act). Employers must provide harassment and discrimination-free work environments.
Harassment and human rights matters are highly sensitive and emotional situations to deal with, and require sound and thorough investigations to properly handle and effectively address these issues in a timely fashion (and to avoid poisoned work environments).
Human Rights issues can be costly, time-consuming and can affect productivity, employees’ livelihoods and morale, and have serious legal implications for an organization.
The organization’s legal, financial and corporate reputation can be placed at risk.
Due Diligence and Human Rights
An organization’s legal liability for human rights issues in the workplace is determined by the extent to which an employer exercised its due diligence.
Demonstrating Due Diligence
- Having a human rights policy with ongoing education and training.
- Having appropriate internal mechanisms for handling human rights concerns and complaints.
- Resolving any matters in a timely and effective manner (degree or extent of action taken is appropriate and reasonable).
- Taking all steps to prevent such incidents from occurring or recurring (monitoring, leadership, education, being “pro-active”).
Objectives of a Quality Investigation
To determine if there is sufficient evidence to support the allegation or complaint being made, or the concerns raised/observed (“duty to act”).
A Quality Investigation:
- Can minimize legal liability (if any).
- Can assist in identifying and implementing any proactive steps or measures to prevent a recurrence.
- Can allow an organization to move forward with certainty to take appropriate action to correct the problem (if necessary).
When to Investigate
- The issue or concern identified, or the complaint being made, fits within the scope of the internal discrimination policy or the “prohibited grounds” under the Ontario Human Rights Code.
- As soon as possible, in order to minimize liability, costs, disruption, employee morale and privacy/confidentiality issues.
- Internal policies, procedures (written vs. oral complaints, signed statements)
- Informal Fact Finding vs. Formal Investigation
- Who conducts the investigation?
- Internal vs. External
- More than one investigator?
- Types of evidence (direct, indirect)
- Concept of “Best Evidence”
- Retention of evidence: maintaining an investigation file
Safety, Confidentiality and Privacy Issues
Standards of Proof
- Prima facie case
- Civil standard – Balance of Probability: “evidence in support of the allegations is sufficiently credible to lead a fair minded person to make a finding of discrimination…”
Burden of Proof
- Prima Facie Case: There is a statement from a complainant setting forth allegations against the “respondent” which, if they are accepted “on their face”, indicate that discrimination has occurred.
- The “burden of proof” would then shift to the respondent (the one being accused) to refute the allegations and establish that discrimination did not occur, or that the respondent had a Code-related defense, which allows certain narrowly-defined kinds of discrimination to occur.
Admissibility of Evidence
- Governed by the Statutory Powers and Procedures Act
- Anything relative to the subject matter is admissible (more relaxed standard)
- Can determine issues of credibility, reliability
Administrative Fairness Issues (Both Parties)
- Right to a timely, neutral, unbiased investigation
- Right of respondent to know who made complaint (i.e., the complainant)
- Right to know outcome (disclosure)
- Limits to the right of disclosure (privacy considerations)
- Right to representation
- Right of respondent to know case (particulars) against him/her and opportunity to reply (right to be heard)
- Right to appeal or reconsideration
- Issues are the questions you have about the complaint (allegation, particulars)
- Facts are what you must investigate and prove
- Evidence is how you find and prove or disprove the facts.
- Investigation Planning: Issue identification, witnesses, parties
- Preparation: Review of any information, case law, similar fact situations
- Interview Setting: Best time, location (atmosphere and privacy), special needs
- Control of Interview: Power imbalances, comfort levels, psychological impact
Introduction: Your authority to act, note location, date, time of interview and make note of all who attended, also if in person or done by telephone.
Interview Style: “Run-on” or verbatim vs. “Q&A;” format: pros and cons, open-ended vs. closed questions (avoid interruptions and leading the witness).
Determine if any coaching, collusion has taken place. (goes to “weighting” of evidence.)
Watch your own language used and how you characterize events and issues. Do not indicate or show approval, disapproval, use plain language.
Start with easier questions, issues (helps to establish rapport) and use active listening techniques (paraphrasing, asking to repeat, probing).
Closing out the interview: opportunity to review, correct and sign notes, provide copy of statement, advise what will happen next. Leave the door open for further contact.
Conducting a Second Interview and when.
Retention of Evidence: How it came into your possession, when it came into your possession, from whom, original, keeping an investigation file.
Documenting How To’s
- Use a Pen (preferably black)
- Write clearly (recording, use of video, note taker)
- Put an identifier on all papers, documents and physical evidence, avoid gaps in notes.
- Record/use actual words, language of witness (no matter how graphic).
- Get parties to initial any corrections and sign (or initial) and date each page of statement.
- If a party declines to review, sign or date, make a note for the record.
- Your own notes pertaining to the interview or investigation: be brief, clear, neutral/objective and professional – avoid subjectivity and inappropriate language.
- Maintain consistency: Dating, signing, ensuring accuracy, noting time, location, parties attending, length of interview, parties advised of process, your authority to interview, right to representation, file identifiers, page numbering (e.g., page 1 of 6, etc.).
Concluding an Investigation
- Making a Determination/Finding: Analysis and weighting of evidence – does the complaint have merit?
- Will a written report be required? (Format)
- Making recommendations
- Review of the findings and outcome (Disclosure)
- Taking Action/Liability Issues/Corrective Action
- Neutrality/Impartiality/Credibility of the Investigator(s) (Perceptions/Appearance)
- Confidentiality/Privacy Issues
- Safety Issues
- Right to Representation (Role of Union)
- Translation/Accessibility/Cultural Considerations
- Thorough Investigation/Obtain Best Evidence
- Credibility/Reliability Factors
- The Investigation File/Documentation
- Communicating Results of Investigation (To Whom – Disclosure)
- Periodic Review – Maintaining Records/Statistics/Being Proactive
- The Possibility of External Investigations (OHRC, Police, Union, Ministry of Labour)