Tips to Conducting a Harassment Investigation

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Tips on Conducting a Harassment Investigation

Objectives of a Quality Investigation

To determine if there is sufficient evidence to support the allegation or complaint being made, or the concerns raised/observed (“duty to act”).

A Quality Investigation:

  • Can minimize legal liability (if any).
  • Can assist in identifying and implementing any proactive steps or measures to prevent a recurrence.
  • Can allow an organization to move forward with certainty to take appropriate action to correct the problem (if necessary).

When to Investigate

When to Investigate
  • The issue or concern identified, or the complaint being made, fits within the scope of the internal discrimination policy or the “prohibited grounds” under the Ontario Human Rights Code.
  • As soon as possible, in order to minimize liability, costs, disruption, employee morale and privacy/confidentiality issues.

Pre-Investigation Considerations
  • Internal policies, procedures (written vs. oral complaints, signed statements)
  • Informal Fact Finding vs. Formal Investigation
  • Who conducts the investigation?
    • Internal vs. External
    • More than one investigator?

Evidentiary Considerations
  • Types of evidence (direct, indirect)
  • Concept of “Best Evidence”
  • Retention of evidence: maintaining an investigation file
  • Safety, Confidentiality and Privacy Issues

Standards of Proof
  • Prima facie case
  • Civil standard – Balance of Probability: “evidence in support of the allegations is sufficiently credible to lead a fair minded person to make a finding of discrimination…”

Burden of Proof
  • Prima Facie Case: There is a statement from a complainant setting forth allegations against the “respondent” which, if they are accepted “on their face”, indicate that discrimination has occurred.
  • The “burden of proof” would then shift to the respondent (the one being accused) to refute the allegations and establish that discrimination did not occur, or that the respondent had a Code-related defense, which allows certain narrowly-defined kinds of discrimination to occur.

Admissibility of Evidence
  • Governed by the Statutory Powers and Procedures Act
  • Anything relative to the subject matter is admissible (more relaxed standard)
  • Can determine issues of credibility, reliability

Administrative Fairness Issues (Both Parties)
  • Right to a timely, neutral, unbiased investigation
  • Right of respondent to know who made complaint (i.e., the complainant)
  • Right to know outcome (disclosure)
  • Limits to the right of disclosure (privacy considerations)
  • Right to representation
  • Right of respondent to know case (particulars) against him/her and opportunity to reply (right to be heard)
  • Right to appeal or reconsideration

Continue to "The Investigation"

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HR Proactive Inc. has been investigating harassment and violence complaints and conducting training for decades. We have developed a wide range of resources to meet the employer’s due diligence in the area of creating and maintaining a respectful workplace. Our Respectful Workplace eLearning module can be purchased off-the-shelf and customized with client Brand/Logo and Policy. The Bill C-65 harassment and violence eLearning SCORM file can be uploaded to your organization’s Learning Management Centre.

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