It's all about doing a thorough investigation

By Stuart Rudner

Late last week, an allegation was made by a woman on the organizing committee of the Pan Am Games that she was sexually harassed by Pan Am Games chairman, and former Ontario premier, David Peterson. As the story became the focus of the media, our firm was interviewed on several occasions in relation to allegations of sexual harassment at work.

I will repeat the two most important points that we have been making:

• Employers cannot ignore any allegations of sexual harassment (or other harassment)
• An employer receiving such an allegation, or that is aware or ought to have been aware of potential harassment in the workplace, must engage in a prompt, thorough and objective investigation.

Coincidentally, my law partner, Natalie MacDonald, and I spent most of last week teaching our Advanced HR Law for HR Professionals course at Osgoode Professional Development. A significant portion of the course was dedicated to discussing investigations, and much of this discussion focused on investigations of alleged harassment.

Natalie and I warned our students that courts and tribunals are penalizing employers much more harshly than they had in the past when they fail to live up to their obligations to provide a safe work environment and to protect employees by investigating allegations of harassment.

While punitive damages in employment law cases in Canada used to be extremely rare and, if they were awarded at all, nominal, the current legal reality is that courts are imposing extraordinary damages, whether they be punitive, moral or otherwise, on a more regular basis and often in the six- or even seven-figure range.

In other words, employers expose themselves to significant liability if they choose to either ignore the issue and not investigate it at all, or investigate unfairly. To be clear, this works both ways: Many employers have been called to task because they accepted the allegations of a complainant as being truthful, embarked upon a prosecution as opposed to an investigation, and then fired the alleged harasser without giving her a fair opportunity to respond to the allegations.

In recent years, courts have considered the need for investigations of misconduct, including harassment, and a number of important hallmarks of a good investigation have emerged, including that it:

• be unbiased
• be thorough
• be timely
• be well-documented
• have defensible conclusions
• include recommendations/action items.

Not all investigations are the same; some can be fairly simple and quick, others have to be more extensive. One of the first decisions an organization will have to make, when facing allegations of harassment, is whether to have the investigation conducted internally or by a third party.

In many cases, it can be efficient and cost-effective for the investigation to be carried out by members of the organization. However, factors to be considered when making this decision include:

• the seriousness of the allegations
• the sensitivity of the issues
• the parties involved
• any potential appearance of bias
• the expertise of the potential investigators
• the availability of the potential investigators
• the costs.

One thing to bear in mind is that while many organizations assume their lawyers will conduct an investigation, this may not be wise as the investigator will typically not be able to be counsel to the organization on the same matter, as they may become a witness. As such, it may be wise to retain a third-party investigator to carry out the investigation.

While an internal investigation may be preferred, it is also important to take into account the expertise and availability of those in the organization. Unfortunately, I have seen many occasions where members of the human resources department have been tasked with investigating allegations of harassment when they had no idea how to conduct an investigation and were so overwhelmed with work that they would not be able to get to it for months.

It is critical to remember that any investigation is to be objective, and the purpose should be to determine what took place and assess whether there is any truth to the allegations. There should be no predetermination of the issues, and no bias in the investigation. Of course, no decision should be made with respect to discipline until the investigation is complete, as it is impossible to know whether any discipline will be warranted.

When there are allegations of harassment or sexual harassment, there is often a lack of witnesses and the reality is that a conclusion will have to be reached based upon an assessment of the credibility of the parties. This is not an excuse to decline to reach a conclusion. Any investigator must reach a conclusion that is defensible based upon the evidence.

In that context, the investigator must assess both parties’ stories, compare them to each other and also assess whether they have an “air of reality.” This is the same task judges and arbitrators must perform; they do not have the luxury of choosing not to reach a conclusion. Of course, bear in mind that this is not a criminal prosecution and the allegations do not have to be proven beyond a reasonable doubt. It is the duty of the investigator to determine, on a balance of probabilities, what took place.

At the outset of the investigation, letters should be sent to both the complainant and the “accused." The letter to the complainant should repeat or summarize the allegations and reassure them that they will be investigated. The complainant must also be told that while efforts will be made to maintain confidentiality, it is impossible to promise absolute confidentiality. At the same time, an individual accused of misconduct should also be provided with a letter which outlines the allegations against him and advises an investigation will take place.

In the course of the investigation, there may be documents to review and witnesses to interview. While there is no set order of steps, the investigator must ensure all relevant evidence has been reviewed. It is not unusual for the investigator to have to interview the primary parties more than once, particularly as new evidence emerges.

Once the investigation has been concluded, the “accused” and the complainant, if there is one, must be advised of the outcome. They are not entitled to the complete report, and the complainant is not entitled to know the specific discipline, if any, that has been imposed. However, both parties are entitled to know what conclusion was reached.

Of course, in almost every investigation, a more thorough report will be appropriate, which should include items such as:

• a summary of the background and allegations
• the mandate of the investigator
• a review of the process
• a list of documents reviewed
• a list of witnesses interviewed
• a review of any relevant organizational policies
• a review of the evidence obtained
• conclusions reached
• recommendations made.

As I discussed in previous blog posts (here and here), investigations are becoming a more important aspect of HR and HR law than they ever have in the past. It is critical that employers respond appropriately to allegations of misconduct, and particularly allegations of harassment or sexual harassment. Failure to do so can expose the organization to significant legal liability, as well as potential public embarrassment, as we have seen on numerous recent occasions.