As workplace investigators, we understand how critical it is that our investigations be carried out in an impartial manner. The Ministry of Labour’s Code of Practice states that in order for an investigation to be “appropriate”, the investigator must be an “objective” person who is neither the alleged harasser nor under his or her control. Of course, these are not the only requirements for objectivity. Some recent case law from the Ontario Human Rights Tribunal offers additional pointers on what not to do to keep the investigation objective.
In Sheldon v. St. Marys Ford Sales Ltd., the adjudicator determined that the employer discriminated against the applicant in part because it conducted an investigation that was “not reasonable in the circumstances.” The adjudicator made this finding in consideration of the internal investigator’s lack of objectivity. In particular, the investigator was the subject of one of the harassing comments, was a good friend of the respondent and was even indebted to him. The respondent company and the internal investigator were together ordered to pay the complainant over $30,000 for discriminating against her and for failing to conduct a reasonable investigation.
In McDonald v. CAA South Central Ontario, the applicant alleged that her employer had discriminated against her on the grounds of race and disability. The applicant sent an email to her employer stating among other things that her manager had targeted her and had spoken to her in a meeting in an “authoritarian” manner and interacted with her as if she were an “angry black girl”. The matter was investigated internally. The investigator prepared typed interview questions in advance of her meeting with the respondent, the applicant’s manager. Her notes for the interview read:
“[w]ith respect to the situation that happened between yourself and [the applicant] on Thursday, I want you to know, you dealt with it great, you kept the focus on her behavior (sic) and not the cultural difference, with that said, let’s walk through what happened in the Thursday conversation.”
In stating that the respondent had “dealt with it great,” the investigator was found to be prejudiced toward the matter. She essentially made a determination before she gathered the information in an impartial manner. Among the internal investigator’s other missteps, she also relied on certain accusations about the applicant by the applicant’s co-workers, such as that she was “very pro-Black rights,” without providing the applicant an opportunity to respond to them. In the end, the respondent was found to have violated the Code and was ordered to pay a penalty of $5,000.00 to the applicant.
As these cases show, an investigation that lacks objectivity and basic procedural fairness can leave an employer exposed to financial risk. An investigation that is objective—and is perceived to be objective—is more likely to be legally defensible. What’s more, when the parties have no reason to doubt the investigator’s objectivity, we find that they are more likely to trust the process and participate fully and honestly. A full and frank exploration of the issues by the parties may reduce the likelihood that those issues will recur in the future.
Let’s explore what it means to be “objective” – apart from not being the harasser or being under the harasser’s control.
According to the Oxford Dictionary, “objective” means not influenced by personal feelings or opinions in considering and representing facts. This is similar to the definition of “neutral”, which is not supporting or helping either side in a conflict, disagreement, etc. While we’re at it, “impartial” means treating all rivals or disputants equally. In other words, an “objective” investigator will analyse and evaluate positions based on the facts and evidence as opposed to other factors. A “neutral” investigator will not judge the parties and will have no preference in outcome. And an “impartial” investigator will approach the investigation in an unprejudiced manner.
Objectivity is an approach to procedural fairness that starts with the selection of an appropriate investigator, is woven into the mandate, continues through the evidence-gathering stage, and culminates in the final report. It is owed to the process and to the parties. Here are some tips that have helped us maintain our own sense of objectivity throughout the many twists and turns of an investigation:
- Tell it like it is. When speaking with the parties, and especially at the start of each interview, state that you are there to conduct an objective investigation. We like to drive this point home by saying that we are not an advocate for anyone in the process, including the Complainant or the Respondent. Not only does this open an interview with a tone of objectivity, it also reminds you of your purpose and appropriately frames the discussion to follow.
- Know yourself. As my colleague Michelle Bird has cleverly articulated, be honest with yourself about your own biases. There’s nothing wrong with having biases – that’s how we’re wired as humans. What’s critical is to know what may suddenly hijack your impartiality so that you will be prepared to respond skillfully when the time comes.
- Stay curious. As the investigation progresses, avoid judging information you receive as good or bad, right or wrong. Just take it all in and suspend your initial opinions. Notice when you’ve made an assumption and are proven wrong in the course of the investigation. Regularly check in with yourself to remember to keep an open mind.
- Consider practicing mindfulness. A regular mindfulness practice can help to heighten your level of awareness to your thoughts as they arise. When we can pay attention to our thoughts, we more likely to notice when our assumptions are unhelpful, such as if we are forming an opinion about a party or an allegation prematurely. The sooner we notice we are losing our even keel, the sooner we can readjust as required.