An unprecedented spotlight has been shone on workplace sexual harassment across Canada in recent months. First there was the Jian Ghomeshi scandal and subsequent allegations of physical abuse and harassment. Then there was the fallout from the recent suspension of two Liberal MPs for what party leader Justin Trudeau has termed personal misconduct.’
In the Ghomeshi case, a Toronto-based employment lawyer has been enlisted to conduct a secondary independent investigation, following an internal investigation by management, which reportedly cleared the fallen radio host. Although the CBC’s decision to bring another lawyer onto the case isn’t necessarily proof that the initial investigation was flawed, further allegations have surfaced bringing that assumption into question. Some CBC staffers connected to the story, for instance, have told media that the public broadcaster never interviewed them. Regardless of what took place initially, counsel is likely probing to what degree the CBC’s sexual harassment policies and procedures were followed—if at all.
In the case of the two Liberal MPs alleged to have acted inappropriately with two female NDP MPs, Parliament until recently had no policies or procedures in place to handle the matter. Trudeau has also enlisted third-party counsel to investigate in that case.
While these may seem like extreme cases, we see similar scenarios playing out on a daily basis across industries. Many organizations that use inexperienced in-house staff to conduct workplace investigations regret the move when they discover the procedure or results are either flawed or incomplete. Others, echoing the parliamentary challenge, simply have no workplace policies in place to govern specific behaviours or their fallout. Needless to say, the risk exposures in both scenarios can be crippling for a company, leaving them open to fines, punishing legal settlements or irreparable brand damage.
Not sure how to tell when your organization is making a workplace investigation mistake? You’re not alone. Here are five of the most common pitfalls—and how to avoid them:
- Failing to recognize the gravity of the situation: If there’s any chance that the employee could be reprimanded or terminated for his behaviour then an investigation needs to be conducted. The reason, of course, is if that employee challenges their dismissal in court, a judge or tribunal will inevitably ask to see the results of the investigation that led to their firing. If that documentation doesn’t exist, neither do your chances of walking away from the case without paying a great deal more in severance pay, or possibly even damages.
- Not bothering with an investigation: Some employers know they should conduct an investigation, but still don’t initiate one because they don’t have the time, interest, or simply don’t want to commit the resources to getting the job done. See my point above for the potential fallout from that approach.
- Assigning the investigation to the wrong people: It’s common for small and mid-sized businesses to have either a single human resources professional or a very small internal HR team, assuming they have one at all. In those cases, they’ll usually hire generalists who can do a bit of everything on the HR front, and possibly turn to a lawyer for additional assistance when needed. Often times, however, they’ll assign a complex workplace investigation to those same generalists, who may or may not have expertise in the area. They invariably make common mistakes ranging from insufficient note-taking to unnecessarily limiting the scope of their investigation and not interviewing enough (or the right) employees. Even worse, sometimes the person conducting the investigation works too closely with the individuals involved, which can result in a clear conflict of interest, allegations of bias and/or a skewed investigation. If you have someone on staff with investigation experience, by all means, leverage those skills when needed. But don’t assume that your generalist can do it all.
- Failing to maintain strict confidentiality throughout the process:Water cooler talk can torpedo even the most carefully-executed workplace investigation. This is a challenge for organizations of all sizes, but tends to be even more detrimental to the outcome of investigations across smaller businesses whose staff tends to share close ties and who can often share information more readily than their counterparts working for large corporations.
- Refusing to seek advice: Most CEOs dread the cost of engaging their employment lawyer. That’s understandable given the often limited budgets of the average small and mid-sized businesses. But the advice I give clients is that engaging a lawyer proactively and mapping out the investigation process in advance can save thousands of dollars in legal expenses over the long term. The reason is that most CEOs contact their lawyers on a reactive basis when a matter has escalated, possibly past the point of a reasonable settlement and into costly litigation. The better approach: contact your employment lawyer if you think there might be the need to conduct an investigation and at least get advice on how to proceed. Your bottom line will thank you for thinking ahead and engaging a professional to help handle the situation.
Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience in providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.
PROFITguide.com is proud to be part of #Project97 — a year-long conversation about sexual assault, abuse and harassment. Visit Project97.ca for more details on this collaborative project by Rogers-owned media outlets, and join us on Twitter with the hashtag #Project97.
Have you ever had to conduct an investigation into workplace harassment at your company? If you’d like to share your experience, email us.