Workplace Investigations – When Do You Need Outside Help?

Lately, the news has been full of stories of abuse and sexual harassment in the workplace. With the #MeToo movement in full swing around the world, it’s no surprise that these allegations, previously kept to the shadows, are now being brought into the light.

While this new wave of harassment reporting was inspired by survivors sharing their stories of abuse by high-profile men in Hollywood, Canadian organizations are not immune. From Jian Ghomeshi at the CBC, to politicians like federal MP Kent Hehr and former leader of the Ontario opposition Patrick Brown, to widespread reports of sexual harassment in Canadian workplaces, it’s clear that there is much work to be done.

Unfortunately, many employers don’t realize there is a problem until a complaint has been made. At that point, it’s not an option to just push the problem aside. But how can a complaint like that be fairly resolved?

In cases where there are allegations involving management, or where the problem seems to involve corporate culture rather than just one individual, it might be impossible to conduct an internal investigation that will be seen as fair.  In other cases, where the allegations are particularly serious or complex, even a well-resourced HR department may not have people with the skills or experience to complete a full investigation.

One way to deal with these challenges is to retain an independent investigator.

What does an independent investigator do?

Our firm has lawyers experienced in conducting independent workplace investigations. An independent investigator is a person outside an organization, brought in when someone has made a complaint about inappropriate workplace behaviour to make a determination about what actually happened and, in some cases, to make recommendations about appropriate responses.

Many independent investigators are lawyers, in part because lawyers have skills and experience in conducting investigations, interviewing witnesses, and assessing evidence. However, a lawyer acting as an independent investigator isn’t wearing their “lawyer hat” – they won’t provide you with legal advice, and won’t be acting on your behalf.

Instead, an independent investigator’s primary objective is to suss out the facts, as best they can. This often includes determining whether an employee breached a workplace policy. Independent investigators will review documents, interview witnesses, weigh evidence, and ultimately provide a formal assessment setting out what they believe happened, and the evidence supporting their conclusion.

How does that help my workplace?

Significant allegations of harassment or abuse can shake a workplace. Employees often worry whether participating in an investigation will put their jobs or reputations at risk. They may also wonder whether an internal investigation will be truly fair. These concerns can affect workplace morale, and can make it more difficult to encourage witnesses to come forward and participate.

Bringing in an independent investigator shows that your organization takes allegations of harassment or abuse seriously. It helps ensure that employees have faith in the investigation process and results by taking clear steps to eliminate bias from the process. It also lets you focus on running your organization, while delegating the difficult task of investigating to someone with the knowledge and experience to do it right.

From a strategic standpoint, bringing in an independent investigator can also be an effective way to protect your organization. Employers have legal obligations to ensure that their employees are able to work in safe environments free from harassment, abuse, or discrimination. Conducting a procedurally fair and unbiased investigation, and taking appropriate follow-up steps, can be a part of meeting your legal obligations to your employees and reducing litigation risk for your organization.

What does McConnan Bion O’Connor & Peterson bring to investigations?

Dirk Ryneveld, Q.C. and Devon M. L. Black form the backbone of our independent investigation team, supported by efficient and knowledgeable staff. They are experienced in conducting independent investigations in both union and non-union workplaces. Dirk and Devon also practice in intersecting areas, such as human rights law and privacy law, and bring that expertise to investigations. We communicate clearly about our process and our role within it, so you and your employees can have confidence in our investigation and our results.

Dirk has long experience conducting investigations in both civil and criminal contexts. He has previously served as BC’s Police Complaint Commissioner, and as lead counsel on the Kosovo component of the prosecution of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia. As a result, he brings exceptional experience to every investigation he takes on.

For particularly sensitive investigations, including sexual harassment and assault allegations, Devon has experience and training in trauma-informed practice, and she makes that perspective a key component of our investigations. Trauma-informed practice is an approach which recognizes the prevalence of trauma and the impacts it can have, including the ways in which it can make it difficult for witnesses to come forward and participate in investigations. By incorporating trauma-informed practice into our work, we can better support witnesses through the often difficult process of an investigation, while ensuring that our final report includes an assessment of the facts that is as complete as possible.

We know that workplace disputes can be complex, stressful, and difficult to resolve. Whether you’re concerned about bullying or harassment, discrimination, sexual harassment, or workplace policy breaches, we have the knowledge and experience to conduct the independent investigation you need. If you need help with a workplace investigation, please contact us for a consultation.