Investigation is the New Arbitration

By Harry Gray and Gavin Marshall

Beware the misuse of the due process tool in your workplace management toolbox.

Investigations are the new arbitration. More and more, the legal expectation is that a flavour of judicial objectivity, in the form of due process, will be introduced before an HR decision is made.  Investigation is an expected tool in the toolbox, and HR practitioners ignore it at their peril. The obligation to treat all employees involved in investigations in a fair and equitable manner, has been reinforced by adjudicators and courts.  Investigations are on the rise, in part due to new rules on Bullying and Harassment, Human Rights Code duties of long-standing, and the advent of ‘Whistle Blower’ policies.  The frequency and complexity of workplace investigations has increased.

Conceptually, workplace investigations are consistent with demands for greater emphasis on transparency and fairness in the workplace legal regime. Notably, the Supreme Court of Canada has recently “moved the dial” to impose a general contractual duty of good faith and “to act honestly,” including in employment relationships.  That “general organizing principle” aligns well with the philosophy of transparency behind the growth of investigations in the modern workplace.

Investigations come at a price. The price is expertise and time or effort. The price is paid by HR professionals, and there are no discounts. When HR is faced with circumstances that require an investigation, you must have the capacity and capability to do it right.  Investigations are a significant investment, so be honest up front: if resources are not available, the HR group risks over-reaching, and the damage of a botched investigation can be greater than the original complaint.

The Nightmare Investigation Scenario
Consider this scenario: you are the HR department head of a mid-sized organization.  You receive a message that alleges that one of the VP’s has sexually harassed a young female staff member.  With only the brief details provided in an email, you assign your most senior HR department manager to assess and conduct the investigation. The VP is re-assigned until the investigation is completed.

After a few days delay to seek legal advice and prepare questions, the HR manager begins the investigation by contacting the complainant.  She indicates that there are “many others,” and lists seven other women that she believes have evidence.  She asserts that, as a support staff for executives, she has had informal conversations with the CEO (a man) in the past about the conduct of the VP (also a man). These were acknowledged but “brushed off” by the CEO.

Your HR manager then interviews the VP and the seven staff members.  She asks to interview the CEO, but the CEO declines to be part of the process, instructing her that he has “nothing to add.” The VP is defensive and very hurt by the allegations and even by the fact that an investigation has commenced.  The HR manager hears from the CEO that the VP is a “valuable asset” to the “core operations of the organization” but that the VP “is worried about the long term consequences to his career.”  This information confirms to the HR manager that the CEO and the VP have continued to discuss the matter.  However, the CEO’s claimed insight into the worries of the VP is at odds with the dismissive attitude the VP takes to the investigation. The HR manager believes the investigation is losing traction.

The HR manager begins to suspect that the CEO is only interested in “getting this behind us.”  On the fourth draft of her report, the HR manager realizes she missed posing some small but (it turns out) key questions to the respondent that go to credibility. When the respondent VP re-schedules a follow up interview for the second time, the HR manager goes to the CEO.  She openly considers switching the investigation to an external consultant.  The CEO expresses disappointment and frustration, stating that its “your policy” and finally a verdict: “Well, if you say you can’t do it, I guess we will have to get someone else who can.”  The conversation has somehow become the ability of the HR department to be decisive in its mandate. The HR manager commits to muscling through, rather than risking being seen as weak and incapable.

Initial delays to prepare questions, and three weeks of interviews, the HR manager concludes that the complaint against the VP was unfounded.  The VP returns to work.  All (female) of the witnesses believe that the investigation was biased.  As the HR Department lead, you realize that your department is three weeks behind in its other projects, that the VP will not take HR advice from your most senior HR manager and that the rumour mill is active with discussions about the ‘real’ story. Some of the seven witnesses are thinking of leaving.  The CEO has scheduled an emergency meeting with you.

What Went Wrong?
Here are the factors that HR might have considered before starting the investigation:

Timeliness: It is common to hold a respondent employee out of service, with pay, pending investigation.  While sometimes appropriate—to ensure that evidence is preserved, that testimony remains untainted by rumour or employees’ sharing their accounts, and to prevent the possibility of further harm to others—the action must be weighed against potential lasting impacts to the reputation of the accused, both in the workplace and beyond.  A speedy investigation is vitally important.

Your HR organization may find itself teetering on a knife-edge between the demands of swift justice and the risk over-promising.  Judge carefully your ability to deliver. This may depend on staffing levels.

Capacity: Compounding the difficulty of timeliness is the related uncertainty of scope. How much time will it take?   Predicting the number of witnesses, documents, the degree of detail, and delay is hard. Starting an investigation that mushrooms into a massive undertaking is risky. As effort grows to get it right, time marches on. Damaging rumours and innuendo can escalate, people take sides, and the focus of your corporate organization is lost.

Capability and Political Considerations: Some investigations present a high level of complexity.  Not all HR staff can handle complicated or extensive investigations into sensitive or politically charged allegations.  Sometimes a seasoned and experienced HR practitioner is needed.  Nobody wants to have to make findings against their own boss, or even put her in the cross-hairs by asking the ‘tough’ questions that are required to find the truth fairly.  Future relationships may be affected.

Bias (Real and Perceived): Investigations are conducted by individuals.  Reaching a productive conclusion requires that the investigator be removed from the facts in dispute. Parties and the broader workforce must also have confidence in the objectivity.  Personal credibility may be key. Assess it honestly. If an investigation is perceived as biased or a whitewash, the result will not be accepted and the issue will not go away or go underground. Appeals, new complaints and declining morale can follow.

Where Did It Go Wrong?
In our case, the HR department manager might have considered the farther-reaching consequences.  They should have ensured they had all required: the speed, resources, experience, ability to ask the difficult questions, “distance” from the parties involved, issues of credibility on the ultimate result, and the political gravitas to make the right outcome stick.

Harry Gray is the Executive Director of the Resident Doctors of BC, and he has over 30 years of human resources management experience. Gavin Marshall is a partner at Roper Greyell LLP, and advises employers of all sizes on workplace law, including investigations. Harry and Gavin will presenting an education session to the Yukon chapter of CPHR, in early April.

(PeopleTalk Spring 2017)

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