Monday, April 29, 2013

Investigations Gone Wrong!

One of My Favorite (or "Favourite") London Pubs
What do these situations have in common:

  • Sally, one of your employees, accuses her co-worker Bob of sexual harassment.
  • A warehouse inventory reveals that supplies are missing.  You review footage from the security camera, and it looks like Mike has been removing company property without permission.
  • Jessica and her boss Mary never hit it off.  Now Jessica comes to you in tears, with a doctor’s note, requesting a leave of absence for stress.  She attributes her ill-health to Mary’s persistent harassment.
In each situation, the employer must undertake an investigation, and bungling the investigation could have serious legal and likely financial consequences.

A couple of recent decisions highlight the need for a fair investigation carried out by a neutral party.  (Please note that I am not a lawyer and none of this is intended as legal advice.)

Here are some things to keep in mind:

You must inform the respondent (i.e. the person who is accused of harassment, etc.) of the accusations against him or her.

In Elgert vs. Home Hardware Stores, Elgert was accused of sexual harassment by a young woman he supervised.  The investigator (more about him later) interviewed the alleged victim and some of her associates, and on that basis, fired Elgert, without ever telling Elgert what he was accused of doing.  Instead, the investigator repeatedly told Elgert, “You know what you did.”  Elgert was escorted off the premises and not allowed to return to collect his belongings.

If the investigator had done a little more digging, he might have found that the complainant (the woman who made the accusation against Elgert) had been heard to say that she would “get even” with him after he gave her a negative performance review and moved her to a work area away from a young man in whom she had a romantic interest.  I can’t provide every detail of Home Hardware’s bungling of this case, but suffice it to say that an Alberta jury awarded Elgert two years’ pay in lieu of notice and substantial damages.

After informing the respondent, you must give him or her a chance to tell their side of the story.

Home Hardware is not the only employer who failed to realize that there might be another side to what looked like a clear case.  Allied, a maintenance company, terminated five employees after a surveillance video seemed to show the men removing cans of soda from a vending machine on a client’s property by reaching up into the dispenser.  Allied argued that its policy of zero tolerance for theft justified the firings. 

However at the hearing before the Labour Relations Board of Quebec a representative of the soda company testified that the machine in question was known to be faulty and that cans of soda would sometimes get stuck in the dispenser or not be released at all.  Moreover, the amount of money in the machine corresponded pretty closely to the cost of the missing cans.  The Labour Relations Board overturned the terminations.  No word yet on damages for the employees.

Hat tip:  I first read about this case in a blog post by Diana Theophilopoulos who is a lawyer with Stikeman Elliot in Montreal. 

It is not enough that the investigator is a neutral party.  The investigator must also be perceived as being neutral.

Back to Elgert vs. Home Hardware Stores:  The executive who was given the task of investigating the complaint against Elgert had no training in investigating sexual harassment complaints.  What’s worse, he turned out to be an old friend of the complainant’s father. 

Even if the executive were a thoroughly trained and highly experienced investigator of such claims, he should not have been selected for the job.  Many reasonable people would argue that, as an old friend of the complainant’s father, it would be difficult for him to remain neutral.  This is not to say that such a relationship would inevitably mean that the investigator was biased.  It is enough that the relationship raises a reasonable doubt about his neutrality.  In other words, it doesn’t pass the “smell test.” 

Think carefully about the investigator’s mandate.  Is this primarily a legal issue, or is the organization’s reputation also at stake?

You may have read about Mike Rice, the university men’s basketball coach at Rutgers who was filmed behaving in an abusive manner towards the young men on the team.  It turns out that Rice had been investigated for abusive behaviour before the video surfaced.  But the investigators’ mandate had been to discover whether Rice perpetrated a “hostile work environment.”  (The answer was no, largely because student athletes are not “employees”).  The investigation focused on a narrow, legalistic question, rather than on wider issues of whether Rice’s conduct made him appropriate as a representative of the university and a suitable role model for young athletes.  Rutgers has had legal costs in getting out of the mess; more importantly, its reputation has suffered.

The main lesson for employers:  Investigations are serious matters.  Personal reputations are at stake and the stress level – even for those not directly involved – is likely to be high.  If an investigation is warranted, do it properly to avoid future legal hassles and costs.

Related Posts:

Bill 168 – Investigating Complaints under your Policy
Workplace Sexual Harassment: A Problem for Management 
Bill 168: A Recent Arbitration Decision

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.

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