When employees learn that they are under investigation for harassment, they naturally have some fear and apprehension around the process. Most employees have never participated in a workplace investigation before. The process can be strange and intimidating.
For employers who may have just received legal advice or made the decision independently that they need to conduct a workplace investigation into complaints they have received, they may also be feeling uneasy about the process and unsure of what to expect.
In order to provide employees and employers with more knowledge, and to dispel some of the misleading rhetoric that we encounter doing this work, we have prepared responses to three common misconceptions about workplace harassment investigations.
Myth #1: The investigator always finds blame with the person under investigation
The idea that the investigator will definitely find you did something wrong just because you are under investigation is something employees are always concerned about.
It is not true that investigators will inevitably find you are to blame simply because someone alleged you did something wrong. We are not alone in this assessment. Many of our investigator and lawyer colleagues report the same experience.
In cases we investigate, it is frequent that claims of wrongdoing are not established. If harassment is found to have occurred, it is usually only partially substantiated. It is very rare that every single allegation raised by a complainant is fully substantiated.
There are many reasons why this happens. Sometimes the complainant makes presumptions about why a respondent acted a certain way without having all the information. Simple misunderstandings are the most common cause of all conflict. Sometimes a complainant mistakenly characterizes proper instruction from a manager as harassment. Sometimes the facts found do not meet the definition of workplace harassment but may amount to some lesser finding of misconduct under the employer’s policies. Sometimes there is simply not enough evidence to make a conclusion one way or the other.
One area where allegations of harassment are substantiated at a higher rate is in the realm of sexual harassment claims. Our experience has been that claims of sexual harassment are substantiated more frequently than claims of general harassment – that being harassment that is not based on a protected characteristic under the Human Right Code. This is consistent with reports from across North America that incidents of sexual harassment in the workplace have not declined in the last 5 years.1 Even so, sexual harassment is not substantiated 100 percent of the time in workplace investigations.
We encourage employers and employees to trust the process. An investigation is not an immediate indictment of the respondent.
Even if an investigation establishes no wrongdoing, it is still not a waste of time. Besides being legally required in many circumstances (eg. duty to investigate under the Occupational Health and Safety Act), an investigation is sometimes the only way to put a long-standing issue in the workplace to rest. It may be necessary to clear an employee or supervisor of unfair allegations. Employee respondents may often be as invested in getting an opportunity to absolve themselves as complainants are through a fair and thorough investigation. Investigations can produce invaluable information for the employer in understanding the root causes of conflict and how to best move forward.
This first myth is tied closely to Myth #2.
Myth #2: Investigators are never neutral and always advantage the employer
This misconception presumes that investigators – whether internal or external – are simply hired guns for the employer and will give the employer whatever result they “want”. This notion is mistaken for several reasons.
Firstly, an investigation ought to be done by an impartial investigator and if the person appointed to investigate is not impartial, the employer risks serious consequences. A Ministry of Labour inspector may order an employer to conduct another investigation by an impartial person possessing such knowledge, experience, or qualifications at the expense of the employer. The employer may also risk high damage awards in litigation for conducting a biased or procedurally unfair investigation.2
Secondly, this myth builds on the misconception that the employer wants to find that someone did something wrong or is always hoping to have a reason to terminate someone at the end of an investigation. This has not been our experience as external investigators. Employers often invest in external investigators because they value both parties involved and want to ensure they get a fair and accurate outcome. We often deal with employers who are concerned about a receiving a serious allegation from an employee and want to do the right thing. They may not feel equipped to investigate the allegation for many reasons, including possibly lacking the necessary trauma-informed training. Many times, employers are hoping for an outcome that will allow both parties to move forward amicably.
Employers and employees are best served when an investigation is conducted fairly and by an investigator with no bias one way or the other. When an employer makes a decision about any employee, they have an interest in getting it right. Few employers would willingly terminate someone on the basis of an obviously sloppy investigation and then find themselves in expensive wrongful dismissal litigation or dealing with more employee complaints because a sloppy investigation failed to identify the root causes of the conflict. Thorough and fair investigations are critical for good decision making by employers.
Myth #3: Investigation reports are meaningless for courts and tribunals
One complaint we occasionally hear is that after a workplace investigation is conducted, the investigation itself serves no further purpose in the context of litigation or human rights claims. While it’s true an investigation report cannot replace evidence given at trial or in front of the tribunal, a well-done investigation is still highly valuable to both the employees and employers.
If a matter ends up in litigation after a workplace investigation – whether for wrongful dismissal or constructive dismissal – both the employee and employer have more information after an investigation than they would if no investigation was conducted at all. The investigation process can reveal valuable information for both sides to use in negotiations to avoid prolonged litigation. Further, it is usually best for an employee to exhaust their internal dispute resolution options before pursuing legal action like constructive dismissal against an employer. A workplace investigation is one of those internal processes.
Because the investigator speaks to relevant witnesses, assesses credibility, and analyzes evidence (which increasingly includes a great deal of documentary evidence such as text messages and emails between parties), an investigation report can provide great insight into the strengths and weaknesses of a case and give the employer an idea of which witnesses should be relied upon to be called at trial or a tribunal. The investigation, and specifically the statements witnesses gave to investigators, may also provide the basis to impeach the credibility of witnesses.
An investigation report also serves the very important use of creating a paper trail which shows the employer did its due diligence. A report can be used to defend the employer against claims of procedural unfairness or process errors. A properly written report sheds light on how the respondent and complainant were treated throughout the process. It also gives insight into how and why an employer came to a certain disciplinary decision which can help demonstrate to a Court that their decision was reasonable and not carried out in bad faith.
Finally, we’ve recently seen how a proper investigation can be used to nip a legal claim against the employer in the bud and dismiss it before it gets to a full hearing.
In a Human Rights Tribunal decision out of British Columbia3, we see an example of how an employer can save themself a lot of headaches by reacting appropriately and taking employee complaints seriously from the get-go.
This was a case in which the complainant (the applicant at the Tribunal) felt discriminated against and harassed due to her speech impediment. She claimed a colleague (the respondent) was mocking and mimicking her speech in front of other employees. She brought her complaint to the HR Director and went on medical leave for mental health reasons. The employer then conducted a workplace investigation and found that the complainant’s concerns were substantiated. They found the respondent violated the employer’s workplace harassment policy. The employer took disciplinary action against the respondent including asking that she apologize to the complainant.
The complainant was unsatisfied with this outcome, and she made a Human Rights claim against both the employer and the respondent employee.
The employer filed an application to dismiss the claim. The Tribunal agreed with the employer and granted the dismissal because they found the employer treated the allegations seriously by conducting a proper investigation and they deemed their overall response adequate. The adjudicator said the employer’s investigation and corrective action already fully addressed the allegations that the complainant was trying to bring to the Tribunal, so it would not further the purposes of the Code to allow the claim to proceed.
In this case, we see how a proper response from an employer, including a swift and fair investigation, can be the saving grace that helps dismiss a claim in less time and with less expense than going through the full hearing process. We have seen our reports short-circuit litigation many times after the respondent’s lawyer sees our thorough report when contemplating an action for wrongful dismissal – although terminations are not a common outcome of the investigations we conduct.
Besides the fact that employers have a statutory duty to investigate harassment, there are many reasons why workplace investigations are a best practice.
It is important for employers to keep in mind that a healthy and productive workplace is one where workers feel confident that harassment or violence will not be tolerated, and where they feel safe to speak up about these issues. Employers should remember that, when they receive a complaint of harassment, it is not necessarily a sign that your workplace is unhealthy. It may actually indicate that you’ve set high standards for respectful conduct and employees trust that their complaints will be handled properly.
This blog post is an expands on a presentation delivered by Larissa Donovan at the 2024 Kingston & The 1000 Islands Legal Conference.
- “The continued prevalence of sexual harassment in workplaces: Where do we go from here?” Rubin Thomlinson LLP, October 22, 2024 <https://rubinthomlinson.com/the-continued-prevalence-of-sexual-harassment-in-workplaces-where-do-we-go-from-here/>. ↩︎
- McGraw v. Southgate (Township), 2021 ONSC 7000 (CanLII) ↩︎
- Salanguit v. Parq Vancouver and another, 2024 BCHRT 119. ↩︎
