As long as there are harassment and respectful workplace policies that provide employees an opportunity to file complaints against their fellow employees, there will be, periodically, false or unfounded allegations. Employers can put themselves in a better position to avoid the liability associated with such false or unfounded allegations if they abide by the following:
- A CLEAR AND APPROPRIATELY RESTRICTIVE DEFINITION OF BULLYING AND HARASSMENT
Bullying and harassment are inherently fuzzy concepts. One person’s harassment or bullying may be another person’s discipline or constructive criticism. A clear definition of bullying and harassment that is contained in a policy (“Policy”) that complies with applicable legislation should decrease the number of false or unfounded allegations.
- WRITTEN COMPLAINT
The Policy should require the Complainant to provide a written complaint, outlining in detail the material facts associated with the alleged harassment or bullying (i.e. who, what, when, where, why, how, and witnesses).
A false or unfounded allegation may be evident from the written Complaint.
If the Complainant is unable to write the Complaint, an unbiased member of management may assist. Such assistance, however, has to be provided carefully to avoid any suggestion that the manager “put words in the Complainant’s mouth” or omitted key facts. The Complainant should be given the opportunity to review and approve the final version of the Complaint.
- THE INVESTIGATOR
The Investigator should be unbiased, detail oriented, willing and able to ask tough questions (particularly of the Complainant) in as sensitive a way as possible. Working knowledge of basic legal concepts (fairness, hearsay, harassment), and the ability to write well are also important qualities the Investigator should possess.
- GIVE THE RESPONDENT THE OPPORTUNITY TO RESPOND
A fair and thorough investigation must give the Respondent (i.e. the person against whom the allegations are being made) an opportunity (and likely many opportunities) to respond to the Complaint and witness statements.
- DO NOT RUSH TO JUDGMENT
“Gut-feelings” and “hunches” should never override objective evidence and analysis. A Respondent’s past performance difficulties do not give an employer license to rush to judgement. This is not to say that the Respondent’s past is irrelevant but it can never override objective evidence and analysis.
- SPEED IS IMPORTANT BUT GETTING IT RIGHT IS MORE IMPORTANT
Bullying and harassment allegations have to be investigated with relative speed, but speed should not override the goal of “getting it right”. Employers who get it wrong (because, for example, they jumped to a conclusion without conducting a thorough investigation) inevitably subject themselves to potential liability (e.g. bad faith findings, punitive damages, defamation claims, etc.).
- DO NOT OVERREACT
When serious allegations are made and such serious allegations, if true, put other members of the workplace in jeopardy, extraordinary measures may be appropriate (e.g. call the police, remove the employee against whom the allegations were made from the workplace). Employers, however, must proceed with caution because an overreaction that is detrimental to a Respondent’s reputation will be problematic.
There is no question that maintaining confidentiality is easier said than done, but employers should make best efforts to make sure that the process is as confidential as possible.
Confidentiality cannot be promised to the Complainant or Respondent because the Respondent, Complainant, and witnesses must be interviewed and be able to respond to specific factual assertions. However, this does not mean that witnesses should not be cautioned against “gossiping” about their interviews. Confidentiality should be emphasized.
- IF ALLEGATIONS ARE UNFOUNDED
If the allegations are unfounded, the Respondent and Complainant should be so advised in separate meetings. Some policies provide that making intentionally false allegations will result in discipline. Given the fuzziness associated with even the most carefully worded definition of bullying and harassment, it may be difficult to conclude that a Complainant made an intentionally false allegation.
In the event of unfounded allegations and when it is evident that confidentiality has not been maintained (see #8), an appropriate communications strategy should be created. There is no “one size fits all” communications strategy because any such strategy will be dependent upon the size and nature of the workplace, the allegations, and the extent to which confidentiality has been breached. Importantly, employees will need to be assured that, even though unfounded allegations may arise from time-to-time, the internal reporting system, and any resulting investigation, will be managed in a fair and reasonable way.