As we settle into 2018, it is safe to say that the number of people coming forward with harassment and discrimination complaints is on the rise. Whether this increase is as a result of the #MeToo movement, of increased awareness as to what constitutes appropriate and inappropriate behaviour, of recently legislated workplace investigation procedures, or as a result of the collective decision that it is time for those affected to speak up, it is clear that we are witnessing a groundswell of people coming forward.
Understandably, employers are becoming increasing worried about how they will deal with a sudden influx of complaints. Employers are wondering how they will be able to uphold the pillars of a fair and neutral investigative process while they juggle multiple complainants, respondents and others who are brought into the process?
The Perils of Not Addressing Complaints Effectively
Our national police force, the Royal Canadian Mounted Police (the RCMP), is one employer who is currently dealing with an enormous number of complainants coming forward with harassment and discrimination complaints. While some of these complaints are historical, many of them involve people who are still working for the RCMP.
In October 2016, then-Commissioner Bob Paulson agreed to settle two class action lawsuits that had alleged that female RCMP members had been discriminated against based on their gender and sexual orientation and had been intimidated and harassed in their workplace. The 2016 settlement included the creation of a conciliation process to compensate those members that had been harassed; this process allowed current and previous employees to submit their particular details to an Independent Assessor who would determine how much monetary compensation they would receive, within a range of 10,000 dollars to 220,000 dollars. At the time of this announcement, the RCMP advised that it had set aside 100 million dollars to finance the settlement.
When the class action settlement was judicially endorsed in May 2017, the lawyers involved estimated that there would be 1000 claimants and that the payout, including legal fees, would fall just short of the $100 million fund.
The original February 8, 2018 deadline to submit claims for assessment by the Independent Assessor in the RCMP class action lawsuit was recently extended to allow claims from those who signaled an intention to file a claim up until May 22nd. According to the class action website, www.merlodavidson.ca, the following has already occurred as of February 9, 2018:
- Decisions have been rendered in 167 files.
- 75 files have been assigned for evaluation.
- 2435 files have been submitted but not yet assigned.
- 1335 files have been opened online but not yet submitted.
Presuming that each of these files represents an individual and there are no duplicate applications, the potential number of files assessed could be as high as 4012, over four times the original estimation.
Although certainly not all of the files are from current employees, the 4012 files represent just over 14% of the current total RCMP workforce of 28,500, and nearly 35% of their current female workforce.
What can Employers do?
While there is no doubt that the situation at the RCMP is unique and extreme, for many other employers who are tackling a large number of complaints at the same time, whether the percentage of employees involved represents 1% or 10% of their workforce, the process can seem daunting.
When faced with a large number of complaints, we suggest that employers take time to work through the following preliminary steps:
- Consider whether or not there is a less formal resolution method that can be explored before pursuing a formal investigation in each of the allegation. This is often an option in an organization’s anti-harassment policy. Providing that the parties agree, there are often mediation or conciliation processes that can be utilized. Employers must be careful in these circumstances that they are still meeting legislative procedural requirements such as those prescribed in Ontario under Bill 132.
- If a formal investigation is the appropriate route to take, does it make sense to have the investigations done by an internal resource, or will a third-party be brought in? This decision requires an examination of alleged facts as well as the particular parties involved. If there are internal resources with the requisite neutrality, training in investigations, as well as the time to do the investigation properly, then choosing an internal investigator is a good choice. If, however, the only possible internal investigator has a close working or professional relationship with the parties, or the matter has the potential to affect the organization publicly, then it is probably better to bring in a third-party neutral. We often advise larger organization to prepare themselves with pre-vetted, qualified investigators that can be accessed with limited notice as the need arises.
In the case of a large number of complaints this decision needs to be made for each of the matters, taking into considerations the specifics of each file.
- Does it make sense to prioritize one investigation chronologically before another? For example, if investigative resources are limited, it may be appropriate to tackle an investigation involving employees who are required to work closely together first, before investigating a matter in which the parties are no longer working together. In making this decision, it is important to remember that all parties are hoping for a timely resolution of the matter.
- Make sure that the mandate for each of the investigations is carefully considered and understood. The investigator, whether internal or external, needs to know at the beginning of the process exactly what they are being asked to do. Will the investigator just be making findings of fact on the specific allegations, or will they be measuring these findings up against a policy or legislation?
The mandate can change during the course of an investigation, and the investigator needs to understand what process ought to be followed before expanding their mandate.
In the case of a large number of complaints, it is important to nail down the mandate for each of the matters and not presume that the same approach will be taken in each of the situations.
- In the case of a large number of complaints involving the same set of facts, is it possible to merge the investigations? If the decision is made not to merge them, is it possible to use evidence gathered in investigation to make findings in the other, and if this is the case, has the person who is providing this evidence been advised of this potential?
If the decision is made to merge the investigations together, this change to the mandate needs to be properly documented and explained in the report.
- In the case of a large influx of complaints, employers must take a step back and ask whether or not there is a larger issue to be tackled? Is there something lacking in policy which has prompted the large number of complaints? Does the organization need additional or remedial training to its employees on appropriate workplace behaviour? Or, is there a spike in complaints in a certain area that prompts the need for a workplace assessment to gauge the extent of problem and determine the next appropriate steps?
- Lastly, now is the best time for building capacity to investigate workplace issues rather than waiting for the rush to come. Organizations need to be thinking today about building this skill set internally, through training, hiring or shadowing, so that when #MeThree and #MeFour come knocking on the door of Human Resources, that there are capable investigators ready to do the work.
In our workplace investigation training courses we teach investigators and process administrators to ensure that the investigation process is fair to both sides, that it is done as quickly as possible, that confidentiality is upheld and that the investigation is as thorough as possible. These pillars need to be the foundation for each and every investigation, whether it is the 1st or 100th complaint in the queue. Where a large number of complaints have been filed, there are more eyes that are watching the process unfold, and this presents a perfect opportunity to demonstrate the organization’s fair and neutral approach to conducting workplace investigations.