Tips on Conducting a Harassment Investigation
Objectives of a Quality InvestigationTo 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 InvestigateWhen 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.
- 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?
- 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
Call or email us today to discuss your workplace Harassment and Violence Prevention Training needs.
We Can Help!
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.