We know that workplace investigations can be disorienting experiences for the employees involved in them. Even a well-planned investigation can leave employees confused, at best, or deeply hurt and resentful toward one another or their employer, at worst.
Recognizing the difficult nature of the experience, we attempt to minimize any negative impact. For example, we take a trauma-informed approach when interviewing participants to avoid causing further harm. When we contemplate who to include as a witness, we only speak with people we absolutely need to involve. We take measures to safeguard confidentiality in part to contain the investigation’s footprint in the workplace and minimize any aftershocks.
Yet, even a steady hand cannot anticipate the myriad ways in which an employee—or a group of employees—may feel negatively impacted by participating in an investigation. Sometimes I reflect on how a Complainant must feel, having to speak to me about very difficult events. Or consider a witness, who aches with regret for having to share with me unfavourable information about her close friend and co-worker. Consider the resentment a Respondent might feel once an investigator has determined, after a lengthy investigation, that she in fact breached none of the company’s policies. Consider the disruption employees will experience should the conclusions of an investigation trigger a termination, or a change in leadership.
And once the investigation is complete, imagine how effective these same employees will be, now that they need to work together again.
As investigators, we stay objective and ensure that our focus is on the facts of what happened. (For tips on how to stay neutral, check out my blog on the subject.) But as lawyers, we are conscious of the challenges that employers face when attempting to reintegrate their employees, post-investigation. To that end, employers may draw on various techniques to support their staff in the days and weeks that follow an investigation.
One option is workplace restoration, a comprehensive process to reintegrate employees after an incident(s) of harassment or the investigation itself. The facilitator would first identify the specific challenges that the organization seeks to resolve; next, the facilitator would engage in one or more of the following interventions to address those issues: one-on-one meetings with the affected employees, conflict coaching, mediation, facilitated dialogues, policy review or remedial coaching. (For more on what workplace restoration might entail, see RT partner Cory Boyd’s blog on the subject.)
Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, received royal assent on October 25, 2018, but is not yet in force. The bill amends the Canada Labour Code to provide a clearer course of action to address workplace harassment. The legislation applies only to federally-regulated industries, such as banks, telecommunications and transport industries, the public service and federal political staff.
One phrase in the bill caught my eye. At paragraph 125(1)(z.16), employers are required to:
take the prescribed measures to prevent and protect against harassment and violence in the work place, respond to occurrences of harassment and violence in the work place and offer support to employees affected by harassment and violence in the work place (emphasis mine)
On its face, the language leaves open the possibility that “support to employees” might be offered after an investigation. Therefore, workplace restoration may be one method to support employees in federally-regulated industries. Employers in these industries can consider workplace restoration in the following situations, to name a few:
- To re-establish respectful working relationships among those who have experienced harassment at work
- To re-affirm trust among employees, or between employee(s) and management, after an incident(s) of harassment
- To assist their employees to process the disruptive impact of an investigation
The regulations under this bill are expected to be put in place by fall of 2019 and these will hopefully provide guidance on what “support to employees” requires. Until then, where the reverberations of harassment can be felt during an investigation and after it has concluded, employers are encouraged to consider all methods to support their employees, including restorative interventions.