In the current climate where the culture of work is being scrutinized like never before, workplace investigations are a significant obligation for employers, right alongside the obligation to create a respectful workplace. But does an investigation, with all it entails, respect the requirement for a respectful workplace?

Today’s focus on workplace investigations arises from the culmination of several factors, including: 1) an increased level of judicial scrutiny about how employers make decisions around employment discipline; 2) a cultural shift in complainants coming forward as a result of movements like #metoo; and 3) amendments to WorkSafeBC legislation in 2015 relating to bullying and harassment that can impact an employee’s health and safety at work.

Of particular importance is the policy rationale behind the WorkSafeBC amendments. The legislation was designed to protect employees from harm, and to require supervisors and employers to meet their obligations to report on and investigate egregious workplace behaviours.

Ironically, the process of investigating, especially if it is not done well, can be contrary to the legislative intent of protecting employees from harm. Investigations can be stressful, disruptive and divisive. The process itself, if not well structured, can create an environment that feels unsafe and distracting. Outcomes may leave complainants and respondents working together without measures to address the feelings of animosity that can flow from accusations and the investigation.

A flawed assumption is that all complaints, regardless of their nature, must be investigated. Employers, and their experienced investigators, have a few tools at their disposal that challenge this assumption.

Prima Facie Review

Employers can conduct a prima facie analysis of a complaint against the backdrop of the law regarding what constitutes bullying and harassment. Essentially, the complaint is assessed to determine if there could be a violation of law if all the allegations are true. If that threshold is not met, an investigation may not be necessary and the employer can explore other ways to address issues raised by the complainant.

Mediation

Most respectful workplace policies include language around the option of mediation prior to an investigation. However, the opportunity to mediate may not arise until the investigation is underway and there has been sufficient fact finding to assess options that may resolve the conflict. It is common in labour matters for adjudicators to also act as mediators. Employers should consider referencing the possibility of mediation throughout the investigation process in their policies, while stipulating that parties must consent to an informal mediation process, and also agree that if the mediation is unsuccessful, the investigator can still complete the formal investigation.

Frivolous, Vexatious, Malicious

The language in most respectful workplace policies contains warnings to prevent the abuse of the complaint process – a variant of a warning to employees that frivolous, vexatious or bad faith complaints can lead to discipline. Investigators need to be confident in finding a complaint is vexatious. Employers should be willing to discipline an employee for submitting a frivolous complaint. Employees need to understand the significance of the complaint process and possible outcomes. Clear policies that are applied consistently when the process is abused help to ensure an investigation only takes place when required.

Workplace investigations provide an essential tool to ensure employees work in a respectful workplace. Deciding if and when to conduct an investigation, who is going to conduct it and under what policies are only a few of the important decisions to be made when a complaint is received.