HR Professional - February/March 2008 - (Page 20)

L E GA L BY MALCOLM MACKILLOP CONDUCTING A WORKPLACE INVESTIGATION orkplace investigations are fraught with complications and difficult decisions. In addition to strong communication skills, a good investigator must possess a sound understanding of due process requirements, a lack of which will almost always result in a flawed investigation. In a recent Ontario Superior Court case, Stone v. SDS Kerr Beavers Dental, the judge found in favour of the plaintiff, Norman Stone, who was terminated with cause for engaging in sexual harassment. The judge concluded that the workplace investigation, conducted by an inexperienced human resources professional, was flawed, and that her inexperience played a significant role in Stone’s termination. The court was especially concerned that the accused was not given a full opportunity to explain his actions or to rectify the situation. He was given only a very vague description of the harassing behaviour and the complainants were not identified. To avoid costly litigation like this case, take a pre-emptive strike. Follow this checklist to ensure a thorough investigation and airtight conclusions. W allegations and the identity of witnesses must be disclosed. Legal representation Although it is an internal investigation, lawyers for the complainant, the accused and even witnesses should be permitted to participate by being present during questioning. Refusing an accused’s request to have their counsel present could be viewed as unfair and highhanded. One caveat: counsel’s actual participation should be limited—they are not allowed to interfere with the conduct of the investigation. Avoid delay Conduct the investigation quickly, make a decision and communicate the decision to the complainant and the accused. Delay causes disruption in the workplace. Provide support Emotionally support participants by providing access to EAP or paid leave of absence. 5. 6. 7. Evaluate the complaint Not all anonymous complaints should be investigated. If you have a reluctant complainant, consider creative solutions that may not involve an investigation, such as a transfer, or education and training. Choosing an investigator It should not be the lawyer who represents the company. It could be a representative from HR, but in most cases, it should be an external, experienced and impartial investigator. Investigation scope Try to control the scope of the investigation, which can easily grow and mutate. An overly broad and unstructured investigation tends to cause more disruption in the workplace and will take more time and money. 1. 2. 3. 8. 9. Evaluate employer action If the employer has condoned the behaviour, this must be considered in evaluating the conclusions and the proper corrective action. Education How many times have you distributed your harassment policy or provided your employees with training? This should be an ongoing process. Redistributing your policy every six months is a great way to reinforce the message with employees. Choose discipline carefully There are different levels of harassment severity and, therefore, termination is not always the most suitable form of discipline. Remember, the courts are sympathetic to dismissed employees and will adopt a contextual analysis in determining whether an employee who is found guilty of harassment should be dismissed for cause. Malcolm J. MacKillop (MMacKillop@HodgsonShields.ca) is a partner at Hodgson Shields and practises employment law in Toronto. HR P R OF E S S I ON A L 10. 4. Full disclosure The accused and the complainant have a right to know what is being said about them. All 20 F e b r u a r y / M a r c h 2 0 0 8

Table of Contents Feed for the Digital Edition of HR Professional - February/March 2008

HR Professional - February/March 2008 Contents Editor's Letter Contributors Leadership Matters Boards By the Numbers Did You Know Sustainability Education News: E-Recycling Communications News: HR Study FYI Ethics World Watch News: Legislation Legal Compensation Focus Strategy The Colour of Money Sustainable Skills From Brown to Green HR Trends: From Winners to Also-Rans Branding Human Capital HR 101 Interview with David Suzuki Off the Shelf The Last Word

HR Professional - February/March 2008

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