How to Conduct a Bullet Proof Harassment Investigation includes Who Should Investigate?, Develop the Procedural Script, Develop the Substantive Script, Interview the Respondent and Witnesses, Draft the Report and How to Document?

1. HOW TO CONDUCT A BULLET‐PROOF
HARASSMENT INVESTIGATION
Presented by: Kristin Taylor
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2. Overview of Presentation
• When and why is an investigation necessary?
• What kind of investigation is required? Where can you do it
yourself? When should you hire someone else?
• How to investigate? What are the procedural requirements?
• How should you document it?
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3. When and Why Investigate?
• Courts, arbitrators and tribunals recognize that allegations of
harassment or serious misconduct have significant impact on
employee and that employees have a right to hear and
respond to allegations against them before a decision that will
have significant impact on their employment is made.
• Adjudicators impose an obligation on the employer to conduct
a fair and effective workplace investigation.
• There is potential liability if an employer either fails to conduct
a workplace investigation or botches the investigation.
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4. On Receiving the Complaint
• Treat the complaint seriously and promptly
• Solicit additional details, if required, to ensure you understand
the complaint
• Consider whether or not to proceed if the complainant cannot
participate
• Defuse workplace tensions pending investigation
• Recommend EAP
• Review the applicable policy and any applicable collective
agreement to ensure compliance
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5. What Kind of Investigation?
• What are the allegations?
• Can they be addressed informally through a meeting or
mediation or is an investigation required?
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6. Who Should Investigate?
• Internal vs. External
• Consider need for
‐ neutrality
‐ competency
‐ prompt response
‐ privilege
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7. Notify the Respondent
• Identify complaint received and how it will be investigated and
by whom
• Caution against any interference with investigation, including
conversations with potential witnesses; put in writing
• Address questions as to representation: is there entitlement
under a collective agreement or the policy?
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8. Develop the Procedural Script
• Complaint filed
• Authority for investigation
• Allegations taken seriously, full cooperation expected and
required
• Outline process for collective evidence
• Deal with recording and/or representation issues
• Cover importance of confidentiality, respect for integrity of
process, no reprisals
• Warn as to consequences of interference and retaliation
• Address timeline and temporary measures, if any
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9. Develop the Substantive Script
• Formulate the list of questions
• Start general and move to specific
• Ensure all material allegations are covered with sufficient
particularity
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10. Interview the Respondent and Witnesses
• Inquire with respect to all material allegations, with
particulars, but do not provide the complaint itself
• Encourage any questions or clarifications
• Document the response: witness statement signed and dated;
address concerns for corrections / changing evidence vs.
clarifications
• Inquire as to witnesses
• Repeat warnings regarding confidentiality and non‐
interference
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11. Follow up, if required, with complainant
• Deal with allegations and/or explanations provided by the
respondent and any witnesses
• Do NOT reach any conclusions until the investigation is
completed
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12. Draft the Report
• Two parts: evidence and conclusions
• Apply appropriate standard of proof
• Document findings on credibility and reasons for them
• Make sure conclusions are supported by the evidence
• Do not fail to reach conclusions
• Should recommendations – a third part – be included?
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13. How to Document?
• Implement the report or have a very good, documented
rationale why not
• Achieve closure – advise both complainant and respondent of
the outcome.
• Consider how to respond to requests to produce the report?
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14. Thank you.
Questions?

15. The preceding presentation contains examples of the kinds of
issues companies dealing harassment investigations could face.
If you are faced with one of these issues, please retain
professional assistance as each situation is unique.