• Diversity and Inclusion, HR Training and Development

Workplace Investigations for Non-Profits – Transcript

Workplace investigations are an essential tool for creating and maintaining a healthy, respectful work environment.
In this insightful webinar, Dorian Persaud, senior lawyer at Persaud Employment Law, explores the complexities of conducting workplace investigations within the education, schools and nonprofit sector.
He covers key topics such as:
  • screening complaints,
  • managing costs
  • navigating internal versus external investigations
  • and addressing post-investigation considerations
Whether you are dealing with sensitive allegations or striving to uphold organizational values, this transcript offers a comprehensive look at best practices to ensure thorough, fair, and legally sound investigations.

Introduction

Today’s webinar is focused on conducting workplace investigations in the nonprofit sector. We are going to look at the unique issues faced by employers in this sector. We’re going to look at best practices when it comes to conducting investigations.
We are then going to take a look at how to manage an external investigator to the extent that you need to bring in a third-party investigator and how to manage the costs that are associated with that process. We’ll then look at issues on the back end of the investigation after you have completed your work and you’ve prepared this report. Do you then need to publish that report to your stakeholders in order to preserve the reputation of the organization? So we’ll look at issues around potential reputational harm to the organization as balanced against the potential for reputational harm to the responding party.
As always, we’ve reserved a lot of time at the back end of this presentation to answer your questions and to help you through any investigation challenges that you might be experiencing.

About the Speaker

My name is Dorian Persaud. I am the senior lawyer at Persaud Employment Law. We are a team of lawyers who specialize in conducting workplace investigations. We help you to create healthy workplaces through investigations, training, and proactive advice.

Why Conduct Investigations?

When it comes to doing this work, we have to start by asking why we even conduct investigations in the first place. The starting point would be the legal framework. We have an obligation under occupational health and safety legislation across this country that requires employers to provide a workplace that is free of violence and harassment. This obligation means we must look into concerns of misconduct when they’re brought to our attention or when we have reason to suspect inappropriate behavior.
Even before changes to the Occupational Health and Safety Act, decisions from the Canadian and provincial human rights tribunals required employers to investigate allegations of discrimination. When an employee comes forward and says, “My human rights have been violated; I’ve been discriminated against on prohibited grounds,” tribunals have ruled that employers can’t just dismiss these issues. Employers need to investigate to ensure there hasn’t been a violation of the code before moving past it. There have been cases where employers have incurred liability and been fined because they failed to investigate a complaint of discrimination.

Reflecting Organizational Values

When you’re conducting this work, you have to remember that it also reflects the values of the organization. Many of you have a code of conduct or another policy document that outlines the values you want to live by. Conducting investigations brings life to that policy and demonstrates that these values are more than just words. You show that you stand by these values, believe in them, and are prepared to enforce them because this is the type of community you want to foster.
Conducting investigations reinforces a positive culture and creates a healthy workplace.

Best Practices: Screening Complaints

Not every allegation gives rise to a formal investigation. You need to ask a few key questions. One of these questions is whether the allegations, if true, violate any of the workplace policies. If the answer is no, you may not need to go further. There might be troubling behavior, and it may still warrant someone looking into that behavior, but it does not necessarily trigger a formal process.
Another question to consider is the potential liability. For example, one of the first investigations I did in my career involved a nonprofit board presented with allegations from ten managers. These managers claimed they were being bullied by the executive director and threatened to walk off the job and claim constructive dismissal if the board didn’t act. This situation created the potential for significant liability and disruption, which necessitated a formal investigation.
Finally, you need to ask whether there is a violation of any statutory obligations, such as the human rights code. If statutory obligations are engaged, this might also necessitate a formal investigation.

Initiating the Investigation

One common pitfall is assuming that a written complaint or email contains the entire story. Employers often take these documents and begin their investigation without meeting the complainant. This is a mistake for several reasons. Written complaints often lack details about when incidents occurred, the physical proximity of the parties, or specific words or actions. These are critical details for determining whether inappropriate behavior took place.
Meeting with the complainant also has a cathartic effect. It provides them with an opportunity to feel heard. Usually, they have suffered these incidents over a significant period and have worked up the courage to come forward. This meeting reassures the complainant that their concerns are being taken seriously.

Preparing the Particulars of Complaint

Coming out of this meeting, you will prepare what’s called the “particulars of complaint.” This is a list of the allegations made by the complainant, which they review to confirm accuracy. It also helps establish the mandate of the investigation, outlining the specific issues to be investigated.
One common mistake investigators make is straying from their mandate. While investigating, they might uncover additional issues, such as workplace affairs or fraudulent overtime claims. These “rabbit holes” can derail the process. Staying focused on the defined mandate is essential, though these other issues might warrant a separate investigation at a later time.

Criminal Liability and Reporting Obligations

After meeting with the complainant and reviewing the allegations, the question arises about obligations when criminal liability might be involved. Employers generally do not have a duty to report such matters to the police. However, there are exceptions. For instance, under the Child and Family Services Act, employers must report if a minor under the age of 16 is at risk or has been harmed. Similar obligations apply under the Retirement Homes Act and Long-Term Care Homes Act for the elderly.
There are also professional obligations for regulated health professionals, such as doctors or nurses, to report misconduct involving vulnerable individuals.

Parallel Investigations: Internal vs. Criminal

A common question in cases involving potential criminal liability is whether employers should still proceed with their internal investigation when the police are involved.


The answer is yes. Police investigations focus on determining whether there is enough evidence for a criminal conviction beyond a reasonable doubt. Employers, on the other hand, operate on a lower standard of proof— the balance of probabilities. This means deciding whether it is more likely than not that the alleged behavior occurred.

Employers also have a duty to act swiftly and efficiently to preserve a workplace free from violence and harassment, regardless of any parallel investigations by the police. 

Challenges with Responding Party Participation

In cases where criminal charges are pending, the responding party might refuse to cooperate with the internal investigation, fearing that anything they say could be used against them in criminal proceedings. This creates a challenge for employers, but from the employer’s perspective, the responding party remains an employee and has a duty to cooperate. While this situation often depends on legal strategy advised by the respondent’s lawyer, employers should still make every effort to move forward with their investigation.

Deciding Between Internal and External Investigators

Deciding whether to use an internal or external investigator depends on several factors. If the allegations involve senior personnel, such as an executive director or board member, an external investigator may be necessary to ensure impartiality. Internal investigators may face challenges in holding high-ranking individuals accountable, especially if there is a power imbalance.
The potential for legal scrutiny also plays a role. In high-stakes cases, such as those involving significant civil claims or human rights complaints, an external investigator can lend credibility to the process and ensure that the findings withstand legal challenges.
Another key consideration is the appearance of bias. Even if an internal investigation is conducted with integrity, long-standing relationships between the investigator and parties involved can create perceptions of bias. This perception alone can undermine the credibility of the investigation.

Managing the Costs of External Investigators

Cost is often a concern when bringing in external investigators. There are ways to manage these costs effectively. One strategy is to limit the length of interviews by setting reasonable time caps, ensuring that each party has sufficient time to share their side of the story without excessive delays.
Another cost-saving measure is conducting interviews virtually, which has become the norm since the pandemic. This eliminates travel expenses and saves time. Additionally, an experienced investigator should provide a clear quote and scope of work at the outset, detailed in a retainer agreement. If the investigation expands, adjustments can be made to accommodate the additional work while managing expectations around costs.

Collecting Evidence

When collecting evidence, confidentiality is paramount, particularly in virtual settings. Employers must ensure that participants understand the importance of not recording or live-streaming interviews without authorization. While participants should not record the proceedings, the investigator should. Recording the interview ensures an accurate record of the questions asked and answers provided.
Some organizations use two-person interview teams—one person asks the questions while the other takes notes. Regardless of the method, preparing a transcript and having the witness review and sign it is a critical step. This practice prevents disputes about what was said during the interview and adds credibility to the findings.

Making Credibility Assessments

Assessing credibility can be one of the most challenging aspects of an investigation. It’s not enough to rely on body language or confidence, as these can be misleading. Instead, investigators must look for corroborative details and inconsistencies in testimonies.
For example, in one case, a female employee accused her supervisor of inappropriate behavior and retaliatory actions after she rejected his advances. While the supervisor claimed he hardly knew the employee, the complainant provided detailed, personal knowledge about his life—details she could not have known without close interactions. This disparity allowed us to make a credibility assessment in favor of the complainant.
These assessments often require experience and instinct. For this reason, we are developing a course specifically on making sound credibility assessments, which will be available in the coming weeks.

Making Findings

At the end of the investigation, you must make a finding on each allegation, determining whether the behavior occurred or not. There may be a temptation to avoid conclusions by stating that the evidence is inconclusive. However, it is crucial to decide whether the alleged behavior occurred based on the balance of probabilities, even if you occasionally get it wrong. Employers are not held to a standard of perfection, and honest mistakes do not result in liability.

Sharing the Investigation Report

One common question is whether employers need to share the full investigation report with the parties involved. The answer is no. Typically, the parties are entitled only to the conclusions of the report. These include the allegations made, the findings on each allegation, and any overall conclusions regarding patterns of behavior.
In some cases, an executive summary may be provided. Rarely, the entire report is shared, but this depends on the specific circumstances.

Publishing Findings to Stakeholders

In certain situations, employers must decide whether to publish the findings of an investigation to stakeholders. For example, in cases involving senior personnel misconduct in a religious or educational institution, transparency might be necessary to preserve trust and credibility within the community. However, publishing the report can expose the organization to defamation claims if the findings are not well-supported by evidence.
This decision requires careful consideration of the potential harm to the organization’s reputation versus the respondent’s reputation. An example is the case involving Hockey Canada and the 2018 World Juniors team, where the report was made public to demonstrate accountability and transparency.

Conclusion

We’ve covered the key stages of workplace investigations, from screening complaints to collecting evidence, making findings, and managing the costs of external investigators. We’ve also addressed issues like parallel investigations, reporting obligations, and the decision to publish findings. While technical difficulties interrupted parts of today’s session, we will send you the presentation slides for your reference.

Thank you for your participation today. If you have additional questions or topics you’d like us to cover in future webinars, please let us know. Our next webinar will focus on sexual harassment investigations, with a criminal law lawyer joining the panel. I look forward to connecting with you again next month.
Visit our Events page here.

[Watch the Webinar Recording on YouTube here]

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."

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