A recently published law firm article reported that the number of workplace investigations in Ontario is skyrocketing. This is largely due to statutory changes that have come into effect over the last few years including Workplace Health and Safety and AODA (the Accessibility for Ontarians with Disabilities Act). Employers are legally required to have workplace harassment and violence policies, and health and safety procedures in the workplace that include how to report, investigate, and resolve complaints.
There are other reasons causing employees to struggle with the demands of the workplace – hybrid and remote work protocols, stress from heavy workloads, less time spent socializing in the office, increased incidents of inappropriate behaviour and misconduct, and not having clear guidelines and policies to follow. Unfortunately, the list of reasons for employee stressors leading to a potential workplace investigative situation is long and sometimes complicated.
There are specific guidelines outlined in the Ontario Health and Safety Act and The Ontario Human Rights Code that govern how workplace investigations should be conducted.
The first rule of thumb is that as soon as Human Resources or a department leader is made aware of a complaint or situation, they are required to investigate this complaint at the earliest possible time. It is important to be aware of the potential consequences of a department head who is aware of a negative situation in their department and t lets the situation fester. Morale plummets, employees are unhappy, and resignations are plentiful. Companies have an obligation to use a qualified human resources professional, a lawyer, or third party investigator to interview employees who have first-hand knowledge of the complaint or situation.
Interviews are to be done privately and confidentially. They can be conducted in person or virtually, so long as the person being interviewed is visible. There are multiple reasons for this – you need to assess body language, eye contact, and facial expressions to determine if there misrepresentation or misleading information is being provided. If you suspect an employee’s account isn’t credible, you might need to schedule a subsequent meeting. If two independent accounts of the situation use the exact words and phrases, then you will need to probe more, and determine if any individuals have corroborated their stories. Try to find out what is real and what is not.
The interviewer must build rapport with both the respondent and complainant. It is important to get the employees to talk openly about the situation through the tone set in the interview and how questions are asked. Be prepared with your questions. Don’t wing it. This is too important a situation to take chances.
Start the interview by explaining the reason for the meeting. Get the employee’s permission to continue. Your first few questions could be a conversation about their length of employment, number of years with the company, and number of years in their current role. Move on to questions about the specific situation. Ask probing questions if needed to better understand the situation. Be mindful not to be judgemental or show that you agree or disagree with what is being said. It is important to remain neutral in your body language, facial expressions, and words used. Do not provide information to interviewees without knowing the full extent of the request. Know what you are providing. The purpose of the interview is to establish what the situation was, when, and how it happened; what was said, and actions taken; and how others (witnesses) reacted. Record the interview so that when you are analyzing what was said you deal with facts and not rely on your memory.
Write recommendations and solutions to management that outline what they need to know about your findings. Be concise, transparent, comprehensive, and accurate.
If you are a lawyer or third party, provide your contact information at the end of the interview. Interviewees might remember something they should have told you and will need a way to reach out to share that forgotten information.
Employers need to implement recommendations in short order. The general rule of thumb is that an investigation should be completed with recommended actions provided no longer than ninety days from first learning about the situation. The investigator should meet with the company’s human resources and leadership to review the recommendations and determine the best way to move forward to satisfy corporate culture, employee’s needs, and come to an amicable resolution. Once the company has implemented the recommendations, follow up with the interviewees is needed to ensure they are content with the resolutions and outcomes.
Workplace investigations are not going away. There are too many scenarios where employers will need a third party to conduct the investigation. The Osborne Group is well-versed in conducting investigations and working with clients to implement the right solutions for your company culture.
Don’t hesitate to reach out to Anne at [email protected]. Let’s explore how we can help each other.