Workplace investigations for non-profits, public and private schools, municipalities and charities can be fraught with issues that normally don’t impact corporate organizations in the same way.
During our recent webinar training on conducting workplace investigations for charities and other non-profits we touched on those, as well as the basics of any investigation.
Watch the webinar replay or read on for the main points.
Understanding the Legal Framework
The foundation of any workplace investigation lies in the legal framework that governs it. Employers have an obligation under occupational health and safety legislation to provide a workplace free from violence and harassment. This obligation necessitates a thorough investigation when concerns of misconduct arise. Additionally, decisions from Canadian and provincial human rights tribunals require employers to investigate allegations of discrimination, further emphasizing the importance of a structured investigative process.
Best Practices for Conducting Investigations
Screening Complaints
Not every complaint necessitates a formal investigation. Employers should ask key questions to determine if the allegations, if true, violate workplace policies or present a potential liability. For example, in one case, multiple managers accused an executive director of bullying, leading to significant disruption and potential liability. This scenario clearly warranted a formal investigation.
Initial Steps in a Workplace Investigation for Non-Profits
Upon receiving a complaint, it’s crucial to meet with the complainant to gather detailed information. This meeting serves a dual purpose: collecting essential details and providing the complainant an opportunity to be heard. Avoid relying solely on written complaints; in-person or virtual meetings help fill in gaps and ensure a comprehensive understanding of the situation.
Managing External Investigators
When allegations involve senior personnel or present significant legal risks, involving an external investigator may be necessary to ensure neutrality and thoroughness. Managing costs is vital. One strategy is to limit interview times and conduct interviews virtually to save on travel expenses.
Collecting Evidence
Confidentiality is paramount. Ensure all parties understand the importance of maintaining confidentiality and refrain from recording interviews without proper authorization. Accurate records of interviews and evidence are crucial. Consider recording interviews (with consent) and preparing transcripts for all parties to review and sign.
Making Findings and Recommendations
It’s essential to make definitive findings on each allegation, even in cases of conflicting evidence. The standard of proof in workplace investigations is a balance of probabilities, not beyond a reasonable doubt. Provide conclusions to the parties involved but maintain confidentiality regarding specific disciplinary actions.
Post-Investigation Considerations
After completing the investigation and preparing the report, employers must decide whether to publish the findings. This decision should balance the potential reputational harm to the organization against the impact on the respondent. In high-profile cases, transparency may be necessary to maintain stakeholder trust.
Conclusion
Workplace investigations are a critical tool for maintaining a safe and respectful work environment. By following best practices and understanding the legal obligations, employers in the non-profit sector can conduct fair and effective investigations that uphold their organizational values and legal responsibilities.
Questions about Workplace Investigations for Non-Profits, Charities, Public and Private Schools
That is a great question. And there are a number of cases out there that have confirmed that the employer is not liable for getting it wrong. You, again, you have the statutory obligation to conduct the investigation. You take that step to preserve a healthy workplace, one that's free from violence and harassment. And the reality is that you may get it wrong. So the fact that you get it wrong doesn't result in liability for you. And again, and especially where you've done the work, even if it crosses the line from not just getting it wrong but you may be negligent. There isn't a claim against the employer for conducting a negligent investigation. There is however, when you if you bring in a third party and that individual is negligent in their work, certainly there's liability that that individual would attract. And the complainant who was affected by the negligent job that was done can certainly bring an action against the investigator. But if again, as an employer, in house conducting an in house and internal investigation, there aren't any claims that or there isn't any potential for liability there for as I said for doing an honest job and just getting it wrong.
Again, when it comes to turning over the investigation report to police, there's a formal process that the police can initiate to get access to that report. But certainly, there's no obligation on the part of the company to hand over its work product to the police. At the end of the day, they're doing their own investigation. They're responsible for that. But it's not unusual we've certainly, in our experience been approached by various police services and asked to see the results of our credibility assessment, maybe because that would be helpful to the detective or inspector, whoever is conducting the work on behalf of the police service. So it does happen from time to time, but certainly, there's no formal, there's no statutory obligation to hand over the investigation work product to the police service
Is that something that triggers an investigation? And that's a that's a good question, right? You often get a range of complaints. And when you get these lower level complaints, and and so forth, you know, the example here that Renee raised, you that in and of itself, you know, a single incident of staring at someone in an aggressive way. That doesn't mean the definition of harassment. In most cases, in most legislation, harassment is defined as a pattern of conduct. And so you're looking at repeated behavior that's known or ought to be known to be unwelcome. And so certainly, if you've got someone who is, you know, constantly acting in an intimidating way, that would meet the pattern meet the definition sorry of harassment. But you know, one one allegation of staring is not going to do it. Now, what you do as the HR professional, do you dismiss it, given that it doesn't on its face violate the policy, or do you look into it in an informal way? And I would say that you want to just speak to the individual involved, you can have a word with the with the manager to just find out, you know, what happened on the day in question and just let them know that, that they need to act in a professional way, even if you're said and even if you're exasperated with an individual, you still need to be professional. So that doesn't mean you have to be perfect and you're not allowed to show any any emotion. But certainly you want to keep your keep those emotions in check and make sure that you communicate your displeasure, or whatever it is to the and to the other employee in a respectful way. So that's the obligation right is just to treat other people with dignity and and and with respect and certainly you could you know, you have to be mature enough to communicate, you know, bad information and negative information in a in a respectful way. So that's really the the word that you want to have with the with the warehouse worker in this situation is just letting them know, you know, here's what the complaint was. No violation of policy, but what's actually going on here, can you conduct yourself in a way that's not going to attract, attract a complaint here?
At the beginning of every investigation, one of the things that that you want to do is you know really go through that process of checking your bias. And we have to keep in mind here too that that includes unconscious bias so all of us, all of us are biased. All of us grew up and have certain experiences that shaped us. We learned from those around us both the good examples and the bad and we take all of these experiences with us. And it's a very difficult thing to do to sit down and have to check and realize, address, identify that unconscious bias and then maybe be conscious of it and understand to what extent that might be affecting the way that you're doing the investigation. So once you go through that process of accepting that you do have these biases, and you then are monitoring that through the investigation and asking yourself honestly if you believe that you can honestly approach this work or if you can put those feelings aside, maybe feelings of mistrust or maybe it's something again that the way that you're raised. A really benign example of this would be someone you're investigating someone who is habitually late and doesn't keep commitments at work and they're being performance managed and you're being brought in as an HR person to help look into this and help with the performance management. You yourself were brought up to always be punctual and always be on time and be respectful of other people's time and that was just a high value placed on that with you. So if you grew up with that and that's the way that you conduct yourself, and you're then going through this process with this individual who is on the other end of the spectrum from where you are and you're having to come to grips with the reason for this behavior and whatnot. That's the situation where you just have to recognize that bias that you have. You're not going to have the kind of respect for someone who disrespects time because that's not the way that you were raised. That doesn't mean then that you can't continue with the process so that you need to excuse yourself from the process, but it's just something that you need to be mindful of. Obviously there's more serious situations where you then where you recognize the bias that may then impede your ability to be neutral and approach it in that dispassionate way and where you do need to step away from it. But that's an excellent question about the process that you have to go through and constantly evaluate as you're going through the investigation to really know if this is something that you need to step away from.
And so the answer to that substantially would be no that there are the same obligations in the US to provide a workplace that's free of violence and harassment. And certainly there's that obligation to investigate allegations of misconduct. And again depending on your state, there's going to be different obligations when it comes to that positive obligation right to report misconduct to the police. We talked about generally there not being an obligation except in circumstances where you are dealing with a minor under the age of sixteen years of age or younger or you're dealing with the elderly, that there may be other exceptions again depending on the state in which you work. But you know that's still good guidance for the most part in terms of identifying this issue. But the steps that we took you through in terms of conducting the investigation and the considerations at each stage and making a credibility assessment and what is required to be provided to the parties, certainly there is there's consistency there between the material that we presented and what you would experience in your state.
In the situation that Manav just described, it sounds like it was lower level misconduct. The parties were able to acknowledge their role in that and were able to speak with each other and resolve it and move on. There's other cases where say for example you are dealing with sexual assault in the workplace. Even if in that circumstance, the complainant and the victim says, you know what, I can have a facilitated discussion and move on from that? That's a situation where you as an organization, you know you really have to take a hard look at whether or not that's in the best even though even if the parties are okay that if that's in the best interest of the organization what message does that send to other employees who aren't really familiar with the nuances of the personal relationship and how they were able to make amends what others see is that there was a serious sexual assault. That this was investigated by the employer and this person is still working here and so did the employer condone this behavior. Right Like it's really hard to come back from certain types of misconduct. And that that would be one where likely you're gonna have to you should part ways otherwise there may not be legal liability because the parties have made up and and they're fine to continue on but you are still doing harm to others in the workplace who may be affected by it and you could see again an erosion in the culture an erosion in the trust, and maybe an exodus of talent right because people are just shocked that you know this perpetrator is allowed to continue in his role presumably without consequence.
You can bring in someone else to another manager to assist with an investigation. You want to make sure that manager obviously is not involved in the factual framework at all that they're not a potential witness in the investigation. You also talked about the issue of bias or perception of bias. You want to make sure that they're not on friendly terms with any of the parties involved. And just to expand on that, some it's not necessarily that you're friends with the individual involved but sometimes just two people having worked in an organization for a very long time together. Again, they don't golf on the weekends. Don't socialize outside of work. But just the fact that they've got this long standing working relationship, that might be enough to tip the scales in terms of treating one party differently or more favorably than another party. So again those are just the considerations you want to whoever you bring in make sure that they're neutral make sure there isn't any issues that are going to create bias or a perception of bias. And to the extent that you've got another resource here. The fact that they don't work in HR shouldn't tie your hands in terms of using them. As long as they understand their obligations regarding confidentiality, especially as it relates to the investigation.
So typically, what you want to do is to let the worker know that you've investigated their complaint, and you're committed to creating a safe environment. And at a high level you might say that the, depending on the facts of the case maybe the responding party, that there are steps being taken with the responding party to address the alleged misconduct or if there's a finding of harassment and misconduct. There may be steps taken even outside of a finding. Maybe there was no finding of harassment, but it was problematic. And so you just let them know that steps are being taken with that individual. Here are the other steps that are being taken maybe structurally to the workplace in order to address the findings from the investigation. Maybe there are improvements being made in the way that complaints are being handled or the procedures that are in place when it comes to dealing with the behavior questions. So there's a range of solutions and actions that an employer is going to take in response to the findings of an investigation. And certainly you can make the worker aware of some of those things specifically by when it comes to the specific discipline if even if there is if there is discipline against another worker that's going to, that that's confidential information. And that would not be shared with the worker. So it's not to say that you're not taking those steps. It's just that one worker is not entitled to know that you are spending another worker for, his or her alleged misconduct. Right. So you're just balancing off those you're meeting that obligation and by providing some high level information, while also balancing off and respecting the duty of confidentiality that you owe to the individual respondent."