As I have begun my workplace investigation practice in Nova Scotia in the last few months, I have encountered some commonly held misconceptions among the employers I’ve spoken with about workplace investigations. These “myths” impact how an employer decides to handle, or more commonly ignore, human rights complaints in the workplace, often to the detriment of the workplace. The most frequent myths that I have heard are:
Myth 1 – We don’t need to investigate
Myth 1 Debunked – The caselaw is clear that when an employer receives a human rights based complaint from an employee, the employer needs to respond by investigating the employee’s allegations. Two Nova Scotia cases bring this to light. In Slaunwhite v. Bay Landing Dining Room and Lounge, 2005 NSHRC 2 the Chair stated at paragraph 100, “The cases are clear; a meaningful investigation is crucial.”
In the July 29, 2014 decision of Rachel Brothers v. Black Educators’ Association, Case Number: 42000-30H07-0129, the Board of Inquiry found at para 77, “The Head Office disregard of the complaints about Ms. Collier’s discriminatory attitudes and behaviour was so complete that it included a failure to even inform the President of the Board of Directors of the problem .” In this case, the Association was not only aware of the discriminatory attitudes and behaviours but it did nothing to investigate or stop those offensive actions.
The Nova Scotia Human Rights Commission in its Guide to Human Rights in the Workplace, dated June 2009, clearly states that an employer has to “respond to (and address) complaints immediately”. The Guide also tells employers that when matters cannot be resolved informally, there must be a formal complaint process available for an investigation to take place. The Guide’s section 3.3.2 Complaint Procedures for the employer – investigating a complaint sets out the Commission’s expectation. “If the situation cannot be resolved informally, there should be a procedure for filing a formal complaint. It should be investigated either by a specially-trained person within the organization or by an outside person with the necessary skills. This person would investigate the complaint thoroughly and interview the complainant, the alleged harasser, and any witnesses. All employees have a responsibility to cooperate in an investigation.”
In our view, the option for employers responding to human rights complaints is not whether to investigate – they can be penalized if they don’t – but rather, who should investigate, someone internal to the organization or external to it.
Myth 2 – It’s too expensive to use an external investigator!
Myth 2 Debunked – Cost is no small issue when discussing a human rights investigation but there is more at stake than paying for an investigation. Employers must also consider the costs of not investigating: lengthy and expensive litigation; large special damage awards for acting in bad faith; negative messaging to the workforce that they don’t matter; telegraphing to the community that employees and their issues are insignificant; and losing good employees.
Perhaps the greatest cost is losing control of the situation when it moves from an internal complaint to a lawsuit. When an employer becomes aware of a problem and begins an investigation, it signals to all involved that this is something that matters. It also allows an employer to find out what has happened so that the matter can be corrected. Moreover, in hiring an external investigator, it has used expert resources to handle a complaint and hopefully resolve it without further escalation. This also adds to the employer’s ability to defend itself if ever challenged. We believe that using an external investigator is a good use of the employer’s money.
Myth 3 – It is too disruptive
Myth 3 Debunked – Planning the investigation well can lessen disruption in the workplace. Firstly, only those involved in the investigation need to know about it and they are always told that this is a confidential matter and that they are not to talk about it. Secondly, interviewing can take place off site, off hours, or off days. Finally, “water cooler” talk can be more disruptive than anything else so it is better that employees who know that something has occurred also know that the employer is doing something about it.
Myth 4 – It will go away
Myth 4 Debunked – Doing nothing will not make the problem go away and is never advised and never helpful in matters of workplace complaints. Complaints gone unaddressed may result in the following: large damage awards in a lawsuit or human rights complaint; public black eye for its failure to act; and widespread employee fear, anger, low morale, and resignations. Sometimes the hardest thing to do is to look under the rock but it is better to know what you are actually dealing with so that you can name it, resolve it, and positively move forward.
Myth 5 – We are not in the investigation business
Myth 5 Debunked – If you are a large organization and receive a regular stream of complaints, it may be useful to have a designated internal investigator, such as a member of the human resources team. The key here is to make sure that this person knows what they are doing, through proper training and practice, and a well thought out workplace investigation process. Of course, there are times when the facts dictate an external investigation. But, you can choose those cases judiciously when the circumstances truly warrant it.
- Do investigate when a complaint is made;
- It may not be as expensive as you think if managed well from the outset;
- Swift action and a well-planned investigation minimize workplace disruption;
- Failure to act will not make the problem go away; and
- Make use of well-trained internal resources and processes but know when you require external expertise.