Lately, I have had the opportunity to assist a number of employees who have had the unfortunate displeasure of being the recipients of a harassment complaint against them; let’s call them the “Respondents” for ease of reference. Each Respondent has expressed to me their initial reactions to the complaints. They are remarkably similar. They tell me it starts with the feeling of disbelief, quickly followed by anger and then confusion.
The confusion they experience can, in part, be related to the actual content of the complaint (for instance when they do not understand the content of the allegations or feel that the allegations are completely manufactured or distortions of real, non-harassing incidents which have occurred). The confusion can also be as a result of not really knowing what to expect as the Respondent in a complaint. At times that confusion can be clarified by reference to an internal harassment policy which states that an investigation may be conducted and which contains an investigation procedure in it. However, the procedure is often vague and does not address the detailed issues and concerns that Respondents have when they are named. So, in order to provide clarity with regard to this second type of confusion, I thought it would be useful to outline the things which Respondents can experience in situations such as these.
Some examples of what to expect:
- Depending upon the severity or nature of the complaint, or the employer’s policy, the employer may decide that it is necessary to conduct an investigation. The investigator may be someone internal to the company, or may be a third party; The Respondent will be notified of the complaint (usually relatively soon after the employer receives the complaint).
- The Respondent may simply be told about the complaint and not given a copy of it at this time, or the person may actually be provided with a copy of the complaint;
- The investigator should have met with the person who filed the complaint first in order to make sure they have obtained all the necessary details of the complaint (sometimes not all the details are put in a written complaint). In some instances, the next person they meet with is the Respondent. However, in other instances, the investigator will meet with witnesses before the Respondent. In any event, the Respondent can expect to be contacted by the Investigator requesting a meeting to go over the allegations and obtain the Respondent’s information and response to the complaint;
- In some instances, the investigator may try to meet with the Respondent without providing him or her with the details of the complaint against them. Investigations conducted in this matter have been criticized in cases such as Stone v. SDS Kerr Beavers Dental, 2006 CanLII 21073 (ON S.C.), aff’d 2007 ONCA 543; and Vautour and Canada Bread Co. (Re), 2011 CLB 21085 because of a failure to provide the Respondents with procedural fairness (that is, allowing them to know the allegations/complaint that they are to respond to);
- Furthermore, if there is any hard documentary evidence that is being relied upon by the person who filed the complaint, then there is also support in case law (Azeff and Bobrow, 2013 QCCRT 299) for the concept that Respondents should be provided with that evidence in advance of the meeting with the investigator as well. Again, the idea being that Respondents should know the accusations and the associated evidence to the accusations in advance so that they may properly prepare themselves to respond to the complaint when they meet with the investigator;
- The Respondent may be asked to sign a confidentiality agreement confirming that they will not share the content of the complaint, or the content of the discussion with the investigator, with anyone except for their legal advisors or family or as may be required by law (for example as a witness in a legal proceeding);
- In regard to the actual meeting with the investigator, many Respondents don’t recognize that they can impose some stipulations or terms in relation to the conduct of the meeting. Those terms include: a location for the meeting that is private and away from the workplace so that other employees will not observe the Respondent being interviewed; attendance of a “note- taker” to accompany the Respondent (the note-taker will likely be asked to sign a confidentiality agreement as well); accompaniment by legal counsel (in a unionized environment it is usually a stipulation of the applicable collective agreement that union representation be granted during such meetings); a translator if necessary; and other items that will permit the Respondent to fully respond to the allegations against them;
- Respondents can and should provide the investigator with names of witnesses he or she believes may be relevant to the investigation and any other evidence to support their version of events; and
- Respondents should expect to be informed of the findings made in the investigation and the impact of those findings upon him or her (if any).
This is not an exhaustive list; experiences in these circumstances may certainly vary. In all cases however, it is necessary that the Respondent be treated fairly in the process and be given a proper opportunity to respond to the complaint. If any of the above does not happen in the right way, or at all, my role when retained by Respondent clients is not only to provide clarity in regard to what to expect, but also to be the watchdog who ensures that they are treated fairly in the process. Unfair treatment results in a flawed investigation which can result in legal liability for the employer involved, so it is in everyone’s (Respondent’s, Complainant’s and Employer’s) best interest to ensure that the process followed treats the Respondent fairly.