Workplace Harassment: Investigating an Internal Complaint

To begin, here is some general advice:

• Not all complaints will require the same degree of investigation — the seriousness of the allegations will determine the appropriate level of investigation.
• Maintain confidentiality to the greatest extent possible by only disclosing information on a “need to know” basis.
• Investigate in a timely but thorough manner.
• Two investigators are better than one at capturing information and will reduce the risk of personal bias being applied. Having two investigators may also help avoid any disputes over the findings of the investigation.
• If your company has a harassment policy (which is strongly recommended), make sure you follow any procedures set out in the policy for investigating complaints.
• Take the complaint seriously. If harassment has occurred, your company could be subject to an external human rights complaint and/or civil claims.
• Consider involving legal counsel if you need advice on any aspect of the investigation, especially for more complicated complaints. Legal counsel does not necessarily have to conduct the investigation, but they can help to ensure it is conducted properly.
• In those jurisdictions covered by privacy legislation, ensure privacy requirements regarding the collection, use and disclosure of information are followed.

WHERE TO START

The best way to determine whether harassment has actually occurred is to meet with, and interview, the following people:

• the complainant;
• the respondent (i.e., the alleged harasser);
• any witnesses; and
• any other individuals who may have knowledge of the situation.

In the interests of confidentiality, try to limit the number of people you speak with to those directly involved in the matter. Meet with each person individually in a discreet location. You may need to arrange interviews off-site if you do not have a suitable location within your company’s offices. Inform the people you interview that they must maintain confidentiality.

Take detailed notes of each interview.

WHAT TO ASK

The specific questions you will want to ask in the interviews will vary depending on the particulars of the complaint. You should typically ask questions in the following areas in order to obtain as much information as possible.

The complainant

Cover the “who, what, when and where.” You should also ask about witnesses and any other relevant information, such as whether any documentation or physical evidence exists to support the complainant’s allegations.

The respondent

Inform the respondent of the complainant’s allegations and ask for their response. As with the complainant, you should also ask about witnesses and any other relevant information the respondent may have.

Witnesses/Other parties

Ask what this person knows about the alleged incident or behaviour and what their relationship is with both the complainant and the respondent.

OTHER USEFUL INFORMATION

Consider reviewing available background information pertaining to the complainant and the respondent, such as personnel files, performance reviews, peer reviews, information about previous complaints involving either party and so forth.

DRAWING CONCLUSIONS

Evaluate the information gathered during the investigation. Take into consideration the credibility of those interviewed and any inconsistencies in their statements. In some cases, you may be unable to determine exactly what happened or you may have difficulty doing so due to ambiguous facts. Be careful not to draw a conclusion unless it is supported.

DOCUMENTATION

Prepare a report summarizing the details of the investigation, any conclusions you were able to reach and any recommendations for remedial action.

COMMUNICATION

Meet individually with the complainant and the respondent to advise them of your conclusions. Advise the respondent of any disciplinary measures.

CONCLUSION

Employers are expected to take active steps to prevent harassment in the workplace and to deal with any complaints that are made. When an employee makes a complaint, it is essential to respond quickly and effectively by conducting a thorough investigation. The above tips are designed to help you with such an investigation.

Susan Neumayer is an associate in McCarthy Tétrault LLP’s Labour and Employment Group in Toronto. McCarthy Tétrault’s Labour and Employment lawyers practice in key business sectors across Canada on cutting edge HR issues. This article has been reprinted by permission.