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Employment Related Criminal Matters / Theft of Trade Secrets

Theft of Proprietary Information / Wrongful Dismissal

Harassment / Bullying Allegations

Human Rights / Charter of Rights Issues

Investigating "Harassment / Bullying" In The Workplace

Workplace investigations at times are laden with complications which present unique challenges for management, necessitating difficult decisions to be made. A good investigator must possess a solid understanding of due process requirements, as well as excellent communication skills, a lack of which would most certainly result in a shabby and inferior investigation.

In Ontario Superior Court case Stone v. SDS Kerr Beavers Dental, it was reported the judge found in favour of the Plaintiff, who was terminated with cause for engaging in sexual harassment. The judge determined the workplace investigation was "flawed", as it was conducted by an inexperienced HR employee, and the sub-standard investigation played a significant role in the Plaintiff's termination. The court was especially concerned that the accused was not afforded the opportunity of explaining his actions or rectifying the situation. The Plaintiff was given only a very vague description of the harassing behaviour and the complainants were not identified.

Corporate management / HR Professionals should be proactive by including the following checklist in the "Security Procedures" section of the company's policy & procedure handbook / manual to ensure proper protocols are followed and thorough investigations are conducted in order to obtain airtight conclusions, thus avoiding potential costly litigation.

Evaluate the complaint

Be mindful that not all anonymous complaints warrant an investigation. If you have a reluctant complainant, consider alternate solutions that may not involve an investigation, such as a transfer to a different department or location, or perhaps additional education and training.

Choosing an investigator

It is recommended that Corporate Counsel not be involved in the investigation process. It could be a representative from HR, but in most instances, it should be an external experienced and impartial investigator.

Investigation scope

Control the scope of the investigation, which can easily grow and take on a life of its own. An overly broad and unstructured investigation tends to cause more disruption in the workplace, takes more time and becomes quite costly.

Full disclosure

The investigator must be cognizant and respectful of the rights of both the accused and the complainant throughout an investigation. Both parties must be made fully aware of what is being said about them. All allegations and the identity of witnesses must be disclosed.

Legal representation

Although it is an internal investigation, Counsel for the complainant, the accused and even witnesses should be permitted to participate by being present during questioning. Denying an accuser's request to have their counsel present may be misconstrued as being unfair and highhanded. One caveat; Counsel's participation should be restricted to prevent them from interfering with the conduct of the investigation.

Avoid delay

The investigation, followed by the decision making process, must be carried out expeditiously, with the decision communicated to the complainant and the accused without delay. Delay causes disruption in the workplace.

Provide support

Morale is an essential component within any organization. Management should provide emotional support to all participants by recommending the company EAP or suggesting a paid leave of absence.

Evaluate employer action

In the event the investigation reveals the employer condoned the accused's behaviour without taking action, this must be a consideration in evaluating the conclusions and deciding the proper corrective action.

Education

Distribution of the company's "harassment policy", together with in-house training, should be an ongoing process. Redistributing the policy every six months or during each performance review reinforces the message with all employees.

Choose discipline carefully

There are different levels of harassment severity and termination is not always the best actionable route to take. Keep in mind, dismissed employees have the sympathy of the courts on their side, and when determining whether an employee who is found guilty of harassment should be dismissed with cause, a contextual analysis will be adopted.

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