The importance of responding appropriately to a complaint of bullying and harassment in the workplace cannot be overstated (for a good overview of risks relating to an improper investigation, listen to our “Investigations in the Workplace” podcast).
While the nature, form, and content of complaints may vary, all complaints of bullying and harassment – formal or informal – must be responded to appropriately and in accordance with applicable policy and legislation. This article will outline how to respond effectively to a complaint at a high level.
1. Address immediate safety and reporting concerns
Most complaints will not involve an immediate health or safety risk. However, where the allegations are serious – for example, alleging there has been a sexual assault or other violent conduct – then the safety of employees must be immediately ensured. This may require reporting the allegations to law enforcement and taking steps to secure the workplace (for example, by placing the alleged harasser on paid leave pending an investigation into the complaint).
We strongly advise employers who receive a complaint involving serious allegations to obtain legal advice immediately. There may also be obligations to report certain kinds of allegations to any relevant insurers at an early stage in the process, which should be complied with.
2. Review your policy and applicable legislation
Canadian employers must have a harassment and bullying policy that complies with the applicable health and safety legislation. A robust policy that legal counsel has reviewed should set out the process for responding to a complaint; however, the best-drafted policy in the world is only as good as its implementation. Employers should ensure that they review and follow their own policy to guide the next steps of the complaint response.
In addition, employers should also confirm what legislation applies to their organization (for example, the rules for federally regulated employees are different than for provincially regulated employees). In many cases, harassment and bullying allegations may also require a consideration of applicable human rights legislation and the occupational health and safety framework.
3. Assess the complaint
Not every complaint is a true bullying and harassment complaint. An investigation is generally only necessary if the allegations would constitute harassment if proven to be true. Personality conflicts, complaints about management style, or day-to-day workplace gripes are examples of issues that likely do not require formal investigation. However, they may still warrant an informal review (particularly if they are likely to escalate).
At this stage, you should ensure the initial complaint is detailed enough to allow you to assess it and plan your investigation. If the complaint is in writing and includes full details of the allegations (i.e., dates, witnesses, and the exact nature of the conduct in question), you are likely in a position to move into planning the investigation; if not, you may need to obtain additional detail from the complainant. Ensure to be mindful of privacy concerns even at this early stage, and advise the complainant of their obligations under the applicable policy with respect to keeping the process confidential.
4. Plan your investigation
The scope of an investigation will depend entirely on the nature of the complaint. Generally speaking, investigations can be conducted internally (usually by a human resource professional) or by an external third-party investigator. In either case, investigations should be conducted in a timely manner, with principles of procedural fairness applied, and in compliance with the applicable legal framework.
The nature of the complaint, seriousness of the allegations, internal expertise in workplace investigations, resource allocation and timeliness considerations, whether privilege may be warranted, and optics around bias or neutrality in relation to the complaint are all relevant considerations when considering whether to outsource an investigation. A third-party investigator is advisable when a complaint involves senior personnel or serious allegations or when a company lacks experienced human resource professionals.
5. Conduct the investigation
Detailed guidance for conducting an effective internal workplace investigation is beyond the scope of this article. A typical investigation will require that the complainant, the respondent, and any witnesses be interviewed, and all relevant documents or other evidence relating to the allegations be reviewed. Again, principles of procedural fairness must be kept in mind, and the investigator should ensure they remain impartial and objective throughout.
If the company has retained a third-party investigator, they will work with the company to obtain any access and information needed to complete their investigation. At the outset, the parties should complete a terms of reference that confirms the scope of the investigator’s engagement and the employer’s expectations around the end product (for example, if you want the investigator to also provide recommendations, in addition to a finding on the complaint).
6. Conclude the investigation
Once the investigation is completed, a conclusion must be made regarding whether the allegations were true, in whole or in part. This will require the investigator to make findings of fact and may require an assessment of witness credibility. An investigator will then prepare an investigation report setting out their conclusion and the basis for it (this might include a detailed report and a summary).
Both the complainant and the respondent should be advised of the outcome, either in summary form or as otherwise required by the applicable legislation. If the complaint has been made out, in full or in part, the employer must determine appropriate next steps, including whether disciplinary action is required. Many employers will obtain additional legal advice at this stage.
7. Update your processes and policy
A complaint offers an excellent opportunity to review the company’s applicable policy from the perspective of what worked – or perhaps what didn’t work – when implementing the policy. For example, the policy might require additional detail regarding who complaints should be reported to or, conversely, allow for more flexibility to adapt the response to certain types of complaints.
Leverage a complaint and corresponding investigation as an opportunity to improve the safety of your workplace and your ability to respond effectively and efficiently to future complaints.