Post on 15-Aug-2020
Workright Investigations Ltd. 5 Things You Need to Know
About Harassment
Investigations
Presented byRandi Chapnik Myers, LL.M., Alternative Dispute Resolution
Donna Marshall, M.A., Counselling Psychology
At Workright, we specialize in helping your organization
properly handle harassment and other conflict issues.Presenting today: Co-founder Randi Chapnik Myers
Randi
Chapnik Myers
Co-founder and lawyer
with a Masters degree in
mediation, Randi
investigates harassment
cases and provides you
with recommendations.
Together, we:
Partner with you to build a
psychologically safe work
culture where employees
perform to their potential
without the stress of
unresolved conflict.
At Workright, we specialize in helping your organization
properly handle harassment and other conflict issues. Presenting today: Co-founder Donna Marshall
Donna Marshall
Co-founder with a Masters
degree in Counselling
Psychology, Donna trains
management in your
organization to manage
and respond to
harassment cases.
Every person is legally entitled to a psychologically safe work environment,
free from discrimination, violence and harassment.
Still, workplace disputes happen.
We help organizations reduce workplace conflict, improve employee relations,
and boost their bottom line.
Find us at:
www.workrightinvestigations.com
647-341-2283
info@workrightinvestigations.com
Presentation Overview
Here are 5 Keys to a
Successful Investigation
#1: Change Your Lens
#2: Know the Law
#3: Avoid Internal Investigation Pitfalls
#4: Hire an External Investigator
#5: Support the Investigation
#1: Change
Your Lens
How we approach
harassment is
important in any
environment.
But keep in mind:
Non profit
organizations face
unique challenges.
The Non Profit Environment
Non Profit Culture #1
We are proud of
being nice
people who do
good things for
others.
Non Profit Culture #2
Conflict is
difficult because
we want to be
kind to
everyone.
Non Profit Culture #3
In depending on
donors to fund
our cause, we
offer behavioural
latitude.
So when harassment happens...
Non Profit Question#1
How do we
handle it in a
“nice” way that’s
kind to everyone
involved?
Non Profit Question#2
How do we
ensure we don’t
offend a donor
who may be the
harasser?
Non Profit Question#3
How do we make
sure that at the
very least that
harassment
stops ?
We Need a New Lens
Nice and kind can never be the
focus in harassment situations.
Rather, we need to be concerned
with being:
● Fair
● Neutral and unbiased
● Confidential
● Structured
● Objective
● Legally sound
● Respectful
● Safe
In this new lens...
Donors... who abuse their power and
wealth are not exempt from
appropriate behavior.
Why?
● Harassment and sexual
harassment are never okay
● Harassment is against the law
● Communication, education and
awareness can help
#2: Know
the Law
Legislation Overview: Ontario Sets a Standard ->
Where Harassment is Defined as:
engaging in a course
of vexatious comment
or conduct against a
worker in a workplace
that is known or ought
reasonably to be
known to be
unwelcome; or
b)
engaging in a course of
vexatious comment or
conduct against a worker in
a workplace because of sex,
sexual orientation, gender
identity or gender
expression, where the
course of comment or
conduct is known or ought
reasonably to be known to
be unwelcome; or
c)
making a sexual solicitation
or advance where the person
making the solicitation or
advance is in a position to
confer, grant or deny a
benefit or advancement to
the worker and the person
knows or ought reasonably
to know that the solicitation
or advance is unwelcome
a)
Implementation of Bill 168/132
Did You Know?
Your organization is required to do 3 things:
1. Develop a harassment policy
2. Train all your employees and supervisors (online)
3. Develop a “written program” to implement the policy
1. Harassment Policy
● Ensure it takes into account
creating a psychologically
safe reporting structure
● Ensure it provides a trained,
safe neutral person or team
in the organization to report
harassment to
● Ensure it meets the latest
standards outlined in
provincial/federal legislation
2. Compliance Training Occupational Health and Safety Act Bill 168/132, customizable to all
provinces:
• Simple to implement
• Certification
• Testing
• Reporting
• Cost effective
• Online
3. Written Harassment Program
This complex and comprehensive document sets out
how incidents of harassment will be reported,
responded to, investigated, and addressed.
While there are guidelines out there, Workright is the
only organization that offers a fill-in-the-blank
complete written program that meets and surpasses
legislation requirements.
Harassment
Program
Requirements
Your written harassment program should
include a thorough, sensitive and
psychologically and legally sound approach to
investigating and processing complaints to
ensure your organization is overcoming
barriers to reporting and addressing
harassment issues appropriately.
#3: Avoid
Internal
Investigation
Pitfalls
As an employer, you have
a legal obligation to
conduct an
investigation— either
internal or external— into
an employee's complaint
of workplace harassment.
Failing to do so can result
in legal liability.
However…
Ask yourself:● Have you been trained to conduct a psychologically safe, legally sound
investigation?
● How do you keep the investigation free from power dynamics?
● How do you ensure confidentiality?
● How do you keep the complainant safe?
● How do you ensure there is no backlash to the complainant (and witnesses)
for reporting?
● How do you come to a fair unbiased decision?
● How do you inform all parties of the results?
● Will your investigation and report hold up in court?
The following cases were decided against the employer,
resulting in significant costs, damaging press and fallout—all
because the employer conducted improper internal
investigations.
Non Profits depend on their reputations so use caution if you
choose to conduct an internal investigation.
Harassment Investigations are Complex
In Smith v Vauxhall Co-Op Petroleum
Limited and Garnett v Alberta Motor
Association, the courts cautioned
employers about the importance of
properly investigating complaints.
As in this case, you can be disciplined on
the basis of an inadequate investigation,
leading to court sanctions.
Case # 1
In Horner v 897469 Ontario Inc., the
Ontario Superior Court imposed
monetary sanctions against an
employer who failed to conduct any
type of investigation into allegations
of workplace harassment.
Case # 2
Case # 3
In Doyle v. Zochem Inc., the company was fined
$60,000 in ‘moral damages’ and $40,000 in other costs
for firing a woman who was sexually harassed.
The employer failed to implement compliance
procedures required by law to address sexual
harassment in the workplace:
● The investigation was too short and not impartial
● The organization ignored advice to deal with the
complaint before proceeding with termination
● The internal harassment “tip line” failed to provide
anonymity
In a recent case involving a non profit
organization, the court ruled that alleged
acts of workplace sexual harassment are
not connected to employment but are
separate matters.
A release from employment, therefore,
may not shield employers from workplace
harassment claims.
Case # 4
Pitfalls of Conducting an
Internal Investigation
● You need specialized training to conduct harassment investigations
● Harassment investigations are different than other investigations
● The nature of the complaint may require you to hire an outside investigator
● There are serious potential problems when the workplace is small, the
investigator personally knows or supervises the parties, the complaint involves
management, or the investigation will consume a large amount of time
Above all, you
NEED:
Proper Training for
Internal
Investigations
Workright’s Harassment
Education Advisory
Response Team (HEART)
program includes:
● Step-by-Step Manual
● Live training
● Scenario specific workshop
● And more
#4: Hire an
External
Investigator
Best Practices of an
External Investigator
● Have training in investigations,
law, psychology, mediation
● Protect the safety of all parties to a
complaint
● Remain neutral/avoid
judgment/examine own biases
● Prevent gossip, backlash, toxicity
● Promote privacy, integrity, respect
● Shield company from liability
When to Hire an External Investigator
Hiring an external investigator is always a smart move, but it’s
particularly important when:
1. You’re not sure you can be impartial
2. The accused harasser is in a leadership/power/influential position
3. There are potential serious legal ramifications
4. You don’t have proper experience/training
5. There is real danger to at least one party
6. You don’t have the time/resources
7. You’re worried about unwanted media attention
8. There is litigation or union representation involved
9. You’re not sure what steps to take to address the harassment issues
10.You don’t know how to manage the disclosure of information and ensure
confidentiality throughout the entire process
You Know You’re Not
Impartial If…● You already know or have heard rumors
about what happened
● You have taken/are considering taking
steps that may prejudice one party
● Your organization has a bias against
certain politics/affiliations
● You have a closer relationship or
alignment with one party than the other
● You have experience dealing with one of
the parties in a similar case
The Harasser is in a Power Position
● In 70% of cases, the harasser is in a position of power,
influence or leadership
● Especially in non profits, it is common for the harasser to
be bringing in millions of dollars of business
● The organization may be in a conflict of interest situation
where it is forced to choose sides that would result in a
significant loss of revenue
● There is pressure by the alleged harasser or
management to drop the case for business reasons
● The complainant is anxious the complaint won’t be
processed in a neutral way because of the leader’s role
While all allegations of harassment must be
taken seriously, some may result in serious
legal liability...
● There may be liability for the harasser
and the organization where the complaint
is not dealt with swiftly and properly
● Some cases can result in criminal
prosecution or employees losing their job
● The more serious the allegations, the
closer the court is likely to scrutinize the
investigation process
There are Serious
Legal Ramifications
Investigating complaints of harassment is complex business,
requiring an in-depth understanding of:
○ Applicable harassment legislation
○ Company policy/procedures/culture
○ Psychology and Organizational Psychology inherent in harassment
○ Process of informing parties about key steps and safe procedures
○ Protocols for interviewing complainant, respondents and witnesses
○ How to assess credibility and evidence, without bias
○ How to formulate recommendations that address causes of harassment
○ How to reduce toxicity on a personal and organizational scale
○ How to reduce liability
No Proper Experience/Training
There is REAL Danger
● Where the complainant is in real or
immediate physical or psychological danger,
interim protections must be put in place
● The organization can be at risk of not acting
swiftly enough to minimize danger or at risk
for malicious prosecution where it overreacts
to a potentially dangerous situation
● Time is of the essence. Conducting
proper investigations means
devoting time and resources to deal
with an immediate problem
● Delay can lead to loss of evidence
(documents, memory, witnesses)
● You need experts whose specialty is
dealing with harassment cases
You Don’t Have
Time/Resources
You Don’t Want Bad
Press
•Scandalous allegations including
harassment, bullying, discrimination or
abuse attract unwanted media attention
•Prompt signing of confidentiality
agreements and proper explanation of
process mitigate against leaks that can
jeopardize the organization’s reputation
and image
● Where litigation or a union grievance is launched by the complainant, a sound
investigative report will go a long way toward demonstrating that the
organization did its part to fairly address the complaint
● A biased or negligent investigation has the potential to subject employers to
lawsuits
● The organization can be sued for:
○ wrongful dismissal
○ breach of privacy
○ defamation
○ workplace mental injury
Litigation or Union is Involved
● In its rush to reduce the conflict, the
organization may consider taking
steps that will prejudice one party and
place the organization at risk
● Another common mistake is avoiding
the harassment issue altogether, or
minimizing or avoiding dealing with
the complaint
The Interim Steps are
Not Clear
● When it comes to disclosing
information before, during and after
an investigation, the organization
has duties and ethical obligations
● Your procedures must outline how
the parties will be informed of the
results and of any corrective action
● If you want to keep the process
“secret” and not disclose the results
of the investigation to the
complainant and accused, consider
why. What are you hiding?
You Don’t Know How to
Manage Information
The investigator must conduct a neutral, safe and fair
investigation all the way through, from:
● Collecting all information to
● Processing all information to
● Coming to a solid decision with recommendations
There are many, many steps...
It Sounds Simple – But It’s Not
The investigator MUST:● Have effective interviewing and listening skills
● Know how to manage emotions of self and all parties
● Remain neutral and suspend judgment
● Develop investigatively appropriate questions
● Create and enforce non-disclosure forms
● Identify protocols for safely collecting information
● Determine where documents will be confidentially kept
● Determine who will have access to information
● Create forms for taking a signed formal complaint
● Create protocols and forms for interviewing witnesses
● Develop protocols for processing complaint and other information
● Provide explanations regarding investigation process
● Develop guidelines for the safety of all parties to a complaint
● Ensure due diligence
Conducting a Safe and Fair Investigation
● Objectively review information collected from all parties to a complaint
● Understand what constitutes a legitimate complaint of harassment
● Suspend judgment and focus on facts
● Make decisions based on the well-being of employees
● Seek legal, psychological or other professional help where necessary
● Ensure the complaint receives serious consideration
● Know what to do when a false complaint has been lodged
● Determine actions, accommodations, recommendations for parties
Properly Processing Information
Requires That You:
#5: Support
the
Investigation
Offloading the case to an
investigator does not mean
your job is done. You are KEY
to the investigation in a role of
SUPPORT.
What does that mean?
How can you help?
How to Work With an
External Investigator
1. Examine your own biases
ASAP!
2. Don’t be defensive. This
is not about you.
3. Make sure your focus
and priority is conducting
an educated, unbiased
investigation without the
influence of politics,
power or influence.
HERE’S HOW...
Follow these 7 steps:
4. Be open to discovering the
vulnerabilities in the
organization’s processes that
led to harassment
5. Honestly assess where the
organization went wrong so you
can improve when the next one
comes along—which it will!
6. Never interfere with the
investigation – only answer
the questions you’re asked
7. Allow the investigator to
do a great job by supporting
the process, decision, and
recommendations
● Keep in mind that whether or not to hire an external
investigator may not be your choice
● There are circumstances when an external investigation may
be ordered by the Ministry of Labour
Either way, we can help...
It May Not Be Up to You
At Workright, we are your
internal and external investigation experts. We investigate harassment and train you to manage cases within the organization.
Donna Marshall
Co-founder with a Masters
in Counselling Psychology,
Donna trains management
in your organization to
manage and respond to
harassment cases.
Randi
Chapnik Myers Stephanie Bot
Co-founder and lawyer
with a Masters in
mediation, Randi
investigates harassment
cases and provides you
with recommendations.
Co-founder and clinical
psychologist, Stephanie
offers online and in-person
counselling services for all
parties affected by
harassment.
Together, we:
Partner with you to build a
psychologically safe work
culture where employees
perform to their potential
without the stress of
unresolved conflict.
● Psycho-legal harassment
investigations and workplace
evaluations
● Conflict resolution with the help of
a certified mediator
● Online Bill 132 Compliance Training
for employees
● Management Training and
Coaching for all levels of staff
● Establishment of an internal team
to handle workplace conflict
Contact us for:
www.workrightinvestigations.com
647-341-2283
info@workrightinvestigations.com
Got questions about
Harassment?
We’ve got answers.