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.