One of the most common mistakes made in workplace harassment investigations is not conducting the investigation in a procedurally fair manner.
Procedural justice has its roots in criminal and administrative law. The level of procedural fairness required varies depending on what is at stake. In the context of criminal law, a defendant's freedom may be at stake.
In matters of criminal law, a court is expected to ensure an extremely high level of procedural fairness. That's why people accused of crimes don't even have to testify to testify in their own defense. The Crown must prove its case and cannot force a defendant to incriminate himself.
In comparison, an administrative body like the Workers' Compensation Board has a standard of procedural fairness that seems rather lax compared to the criminal context.
What does procedural justice mean for workplace investigations?
At the operational level it has many meanings. Essentially, it is about ensuring that the procedural elements of the investigation do not unfairly affect either party, and especially that the procedural elements do not affect one party for the benefit of the other.
In the context of workplace investigation, procedural justice involves questions such as:
- Who Receives Harassment Reports? What if that person is the defendant?
- Who does the research? Someone internal or an external professional?
- How quickly should the investigation begin and how quickly should it be completed? Five days, five weeks, five months…?
- What precautionary measures should be imposed? Paid leave, job changes, etc.?
- What measures are taken to prevent witnesses from coordinating their testimonies? Signed confidentiality commitments, sanctions for interference set out in company policy?
- Has the defendant's right to know what the allegations are duly observed? How many details are you entitled to know about a claim against you? What if the written complaint is too inflammatory? What if it was just verbally?
The list goes on.
Courts have awarded some employers large punitive damages for failing to conduct a procedurally fair investigation. Damages of over $75,000 were awarded for miscarriages of procedural justice. This type of award is intended, in part, to serve as a wake-up call to employers to take procedural fairness seriously.
Below, I will share two cautionary tales to illustrate the importance of procedural justice in the context of investigating workplace bullying. The cases are only loosely based on amalgamations of actual investigative facts and should only be understood in the educational context in which they are offered.
Case 1
A senior manager (Mr. Rookie) has some friction with three longtime employees who report directly to him. The organization has about fifty employees in total.
Employees present their complaints to the Executive Director (DE). In consultation with the Director of Human Resources, the ED decides that this attrition can be managed after brief meetings with all the people involved. The problem appears for the director of ED and RR. to work. This informal approach seems to work.
Eventually, all parties come together in a kind of mediation environment, but without an external mediator. The director of DE and HR facilitates the discussion. Information and insights are shared. Mutual apologies are made and sound genuine. People shake hands. There are smiles and laughter everywhere. The director of ED and HR even checks in every week with people in the group to see that the peace is being maintained. Management did everything right. Good?
Unfortunately, the attrition starts again. It turns out that Mr. Rookie had replaced a much-loved employee who had been fired under a cloud of rumors about poor performance, misappropriation of company resources, etc. All three former employees felt great loyalty to their former boss.
After failing to secure an alternate position for nearly a year, the former manager, who still socialized with his former employees, began to influence them, encouraging them to sabotage Mr. Noob.
Mr. Novato filed a harassment complaint against his three direct reports. The complaint contained serious allegations of harassment. Management decided to hire an outside investigator.
The investigator received the written complaint from Mr. Novato and this same written complaint was shared with all three interviewees by the investigator. They each wrote a response to the allegations against them and met with the investigator. Those written responses contained numerous counterclaims against Mr. Noob. Most of the claims in these counter-claims were repetitions of previous claims that Mr. Newbie and management thought they had been resolved nine months earlier.
Mistake of procedural justice
The investigator never shared the counterclaims with Mr. Noob.
The investigator simply interviewed him and asked him questions related to the counterclaims. The investigator felt that he had an adequate understanding of these claims and did not feel the need to file counterclaims in writing.
The problem was that Mr. Novato didn't even know he was being investigated for harassment. He felt that these old grievances were just part of the context of his grievances against others. As the interview progressed, he began to feel that he was being investigated for harassment. Several weeks later, before the investigator's report was produced, Mr. Newbie obtained legal advice and complained of procedural unfairness.
The investigator never explained that he was both the plaintiff and the defendant. Partly as a result of this error, the investigator never discovered that the earlier complaints had been fully resolved.
The investigator also improperly relied on the company's harassment policy to justify not sharing the three defendants' counterclaims with Mr. Newbie. Politics were silent on this aspect of procedural justice, but that doesn't mean it wasn't necessary. In the computer age, using copy and paste functions, there are many harassment policies that have problems like this. Investigators need to know the fundamental elements of procedural justice and apply them even if policies are incorrect or lack guidance on a specific issue. These issues and the confidence to create correct procedures on the spot can be extremely challenging for those without legal training.
There are several examples in investigative jurisprudence that caution investigators against a “cold question” style of investigation, in which investigators begin by asking the defendant for information before revealing true allegations. This investigative style may be common in some TV police investigations, but it risks violating fair trial standards. Meeting with a defendant without giving prior notice or details of the complaint against him can have costly consequences.
Some of the rudimentary best practices for ensuring the defendant receives procedural justice include:
- Sufficient advance notice of the investigation and request for an interview
- A written copy of the complaint and/or details of the allegations prior to the meeting so that the respondent is not blindsided by the complaints and can prepare to discuss potentially sensitive issues. It is often best for the investigator to prepare this after meeting with the complainant. This can be a good way to remove unnecessary and inflammatory language and add clarity to the complaint.
- Sufficient time and accommodation during the interview process to provide an adequate and complete opportunity to respond to the allegations and provide your own version of events. Sometimes this means allowing the parties to have an attorney, spouse or personal support person present during the interview process, as long as they are bound by the same confidentiality commitments. Sometimes requires follow-up questions via phone or email.
Case 2
In a recent investigation of a medium-sized public sector employer, involving allegations of harassment against all senior members of the organization, an extraordinarily difficult concern of procedural fairness emerged. All the complaints were linked in the form of an alleged conspiracy to harass the plaintiff over a period of several years. Respondents included the CEO, in-house counsel, director of human resources, board members and others.
The problem was: who handles this complaint? Even if one of the senior accused officials hired outside counsel or an independent human resources consultant to develop an investigative mandate, hire an investigator and assist with investigative logistics, he could be accused of selecting an attorney or an HR consultant .
Nor would it be fair to insist that one of the lowest-ranking people in HR or another department take over the administrative functions of selecting and communicating with an outside investigator to investigate the senior management team. This junior would essentially be overseeing an investigation by his superiors, very uncomfortable as an employee who enjoys his job and not immune to allegations of bias.
The other problem was that, even if this had been tried, none of the younger ones were qualified to take on this role in terms of experience and competence. What can be done in such situations?
HeOccupational Health and Safety LawHe has no guidance on this. This seems to be a gap in the legislation that could be filled by the Ministry of Labor assuming the role of appointing and instructing an investigator in these unusual cases. I doubt the government wants such responsibility in micromanaging workplace investigations.
A more practical solution may be to anticipate these types of issues and establish a process in advance for these issues to be escalated to a pre-selected independent law firm or human resources professional. Ideally, this outside agent would limit their involvement with the employer to just performing services in these limited circumstances to avoid criticism that they are not really independent enough.
In this case, the in-house lawyer (the only lawyer in the legal department) decided to carry the ball even though he was accused of harassment. It was unclear exactly what he did to harass the whistleblower based on the initial written complaint, other than the suggestion that he was complicit with others who also identified who had more specific allegations against them.
Of all the high-ranking people in this workplace, it was the in-house counsel who knew best what sort of procedural fairness issues his involvement raised. His approach was to seek advice from outside counsel. I was able to review correspondence with that advisor as part of my research, which was very helpful. This helped me to establish that the in-house counsel had been exceptionally careful and had relied on the advice of an experienced and wise attorney. The advisory was essentially trying to mediate the complaints and it almost worked.
Unfortunately, despite several successful mediation sessions that narrowed down some of the issues, important issues remained unresolved in the complainant's mind and required an investigation.
By the time I became involved, the in-house counsel was gone and everyone except the Complainant believed that the complaints had been resolved through mediation over a year earlier. I was hired by an out-of-town law firm acting as interim in-house counsel, so the necessary independence of the person managing the investigative process on behalf of the employer was clearly established.
That was very important. This office understood the importance of its independence and the need to review the activities of the former internal counsel in relation to the complaints handling process. This is why I have been authorized to review privileged internal counsel correspondence with outside counsel regarding the claims.
What this review of correspondence revealed was very careful correspondence and the selection of a truly independent and impartial outside counsel, whose advice was followed. The in-house lawyer may have dug his own procedural justice grave by engaging in this way. For me, it conjured up images of workers at the Chernobyl nuclear power plant marching back to the exploded reactor to fight the fire, sacrificing themselves for the greater good. He was a brave soul. Who knew procedural justice could be so dangerous!
Lesson on Procedural Justice Best Practices
Prior to a specific complaint, develop a procedurally fair protocol for handling complaints against a large group of senior management individuals, such as an independent law firm or human resources professional, who are restricted to this limited service role.
Ensuring procedural fairness is key to conducting investigations that are “appropriate in the circumstances” as prescribed in art. 07.32 (1) (a) ofOccupational Health and Safety LawR.S.O. 1990 c. O.1