Occasionally, we are asked to provide consultation for employees who find themselves under investigation. They ask for our help understanding the process and preparing responses to the allegations against them. Primarily, we help them organize their thoughts, think about the kind of evidence they might have to counter the allegations, and ensure they know their rights.
This last part should be easy, as trained investigators ought to know how to run a fair investigation process. Unfortunately, this is not always true, and it can have serious consequences for all involved when the Investigator makes procedural fairness mistakes.
The Facts and Context of the Investigation
- Large employer (over 4,000 employees) with multiple offices in Ontario.
- Central Human Resources Department serving all employees.
- Internal Investigator, working out of the HR Department, was assigned the investigation
- Allegations of sexual harassment by a female employee against a male co- worker.
- Numerous allegations spanning over a year and not reported until long after they occurred.
The type of sexual harassment alleged was not physical and did not consist of explicit or graphic sexually comments, but primarily comments that could be interpreted as “flirty” or indicating a romantic interest. While sexual harassment of any kind is unacceptable, there is a wide range of behaviours captured by the definition set out in the Occupational Health and Safety Act. They can include unwanted comments about someone’s appearance to threats of retaliation by a superior for refusing to engage in sexual acts.
This case involved numerous unwanted comments about the Complainant’s appearance, staring, and a host of incidents in which the Respondent was accused of seeking unnecessary social contact with the Complainant at work and work-related social events.
What Went Wrong
Two major things went wrong with this investigation, and they overlapped.
- The internal investigator failed to ensure procedural fairness for the Respondent;
- The internal investigator failed to accommodate a protected disability that was supported by a properly documented medical opinion by the Respondent’s treating physician.
The Respondent was put on administrative leave. He was told only that he was under investigation. The internal investigator did not contact him until two months later, when he was sent an email seeking to arrange a time for an interview. This email stated only that the allegations were about sexual harassment of a named individual co-worker and that the alleged conduct had been ongoing for over a year.
The Respondent sent several requests to the investigator asking for a summary of these allegations so that he could prepare himself for the interview. He asked for things like times and dates of the events in question and what he is alleged to have done or said that constituted sexual harassment.
The Investigator refused to provide these details even after the Respondent had pointed to the requirement in the employer’s policy for “procedural fairness” in the investigation process and that he was entitled to a summary of the allegations against him. When the investigation was completed and after the Respondent was terminated, he learned that there had been over 30 separate allegations which had taken place over the course of 14 months, the particulars of which had been set out in a notebook prepared by the Complainant and provided to the investigator.
Procedural Fairness
The concept of procedural fairness is one of the oldest and most fundamental concepts in all adjudication processes. It has many distinct elements. The right to know the allegations with sufficient detail to have a meaningful opportunity to defend oneself is one of the most essential elements of procedural fairness. This is sometimes also called “notice”.
For example, knowing that a particular incident is alleged to have taken place on a specific date could enable someone to produce an alibi and evidence to support it, such as producing a plane ticket showing they were out of the country at the relevant time.
Knowing the nature of the alleged sexual harassment is critical. For example, a witness might have overheard two people rehearsing lines in a play rather than a real conversation and mistaken it for some kind of sexual harassment. The possibilities are endless.
Of course, this does not mean any excuse ought to be accepted. However, if there is an explanation or evidence that supports a finding contrary to the allegation, the Respondent ought to be given an opportunity to provide that evidence. To do that, they need to know some basic information about the allegation.
The mere claim that the Respondent had repeatedly sexually harassed a named colleague over the course of a year is not enough information to have a meaningful chance to respond. Expecting someone who is first confronted with some of the details in an investigation interview may not be enough time to allow a meaningful response. We consider this to be investigation by ambush, and it is a poor practice. It is fundamentally unfair and compromises the validity of the investigator’s findings, such that they should not be relied upon to make high-impact decisions like termination, not to mention the stigma for the Respondent of being found to have sexually harassed someone.
The investigator should have provided sufficient details of the allegations, such as dates, locations, and other context in addition to a description of what was said. It might be things such as “you made comments about her ‘sexy boots’” or “you leered at her, smiled, and raised your eyebrows in a suggestive way”.
If the events took place during a meeting with others present, that fact may also be relevant. If there was an email or text exchange, those should be provided. If there was a video or voice recording, it should be provided in advance of the interview. In this particular investigation, although many of the allegations involved this type of evidence, none of it was provided. Instead, the Respondent was ambushed with all of it during a five-hour interview.
Duty to Accommodate a Disability
In the Investigator’s first email to the Respondent, they stated that he should request accommodation if he had any disabilities relevant to his participation in the investigation. When the Respondent submitted for accommodation based on his disability, the Investigator seemed to have no knowledge or understanding of how to apply the duty to accommodate. This was an example of an Investigator / Employer paying lip service to human rights issues rather than genuinely engaging in a good-faith accommodation process.
The Respondent suffered from a moderate to severe General Anxiety Disorder (GAD) with associated social anxiety. The stress of being put on leave without explanation and then being informed that he was under investigation for sexual harassment without any details caused the Respondent to decompensate and fall into a debilitating depressive state.
The Respondent provided a letter from his treating Psychiatrist which identified his diagnosis, explained that he had been treated by the specialist for many years, and it described the ways in which the Respondent’s disabilities will affect his participation in the investigation process. The Psychiatrist suggested several ways the investigator could accommodate the disabilities, including having more time to process information, and he suggested that having a summary of the allegations in advance of an investigation interview would be most helpful. He also suggested frequent breaks and a virtual meeting by video conference so that he could be in less anxiety-provoking surroundings for his interview.
Astonishingly, the investigator flatly refused all of these suggested accommodations, even stating in the report that granting them would have “affected the integrity of the investigation” but offered no explanation of how this was so.
One does not need any special expertise to understand that being the subject of an investigation into sexual harassment would be a highly stressful experience for anyone. For someone with an existing moderate to severe anxiety disorder, the challenge is exacerbated.
The fact is that the Human Rights Code requires employers to accommodate employees “up to the point of undue hardship” in these types of circumstances. This is a very high bar. Providing the information already required by the need for procedural fairness will not, under any circumstances, be an “undue hardship”. Holding the investigation interview virtually is very unlikely to be an undue hardship, especially given that this is now probably the most common way investigations are conducted since the COVID-19 Pandemic forced workplaces around the world to go virtual. Allowing for frequent breaks and time to process information is an exceedingly small ask in the grand scheme of accommodations.
Investigation Outcome
Following the investigation, the Respondent was terminated. This employee was unionized, and the conduct of the union representatives both during the investigation and post-termination also raised questions about the duty of fair representation. Primarily, they failed to grieve the lack of procedural fairness in the investigation and the employer’s failure to accommodate his disability.
The follow-up proceedings included:
- a weakly framed grievance by the Union related to the lack of progressive discipline;
- a Human Rights Tribunal proceeding against both the employer and the Union;
- a duty of fair representation proceeding against the Union before the Ontario Labour Relations Board.
The lack of understanding of these basic investigation concepts of fairness and accommodation, combined with other poor decision making, not only caused tremendous stress to the Respondent, but in will result in a mountain of legal fees for both the employer and the union combined, not to mention the potentially damaging publicity for the employer and union as they were accused of discriminatory conduct and shamefully inadequate handling of the investigation.
The impact on the Respondent was immeasurable, but it’s also important to remember that botched investigations also pose a significant risk to complainants. When an investigation is done unfairly and without procedural fairness, it increases the risk that the complainant may be forced to participate in another investigation all over again (an order that can be made by the Ministry of Labour) or be dragged into litigation proceedings as a witness for the employer. This could be retraumatizing for victims. Failing to conduct an investigation fairly hurts everyone.
Lessons Learned
Understanding the meaning of procedural fairness and the duty to accommodate is critical for investigators. When in doubt, err on the side of caution by providing detailed summaries of allegations in advance of an investigation interview and by granting any reasonable request for accommodation supported by medical evidence. Relying on internal investigators, who may feel pressure to produce a particular result, can be catastrophic. Relying on poorly trained investigators is fraught with immense risk.
