Harassment Investigations:
Conducting investigations that are fair and effective
Post-Conference Workshop
Toronto

Presented by Lancaster House and the University of Toronto,
Centre for Industrial Relations and Human Resources

►covering employment in both federal and provincial jurisdictions◄

Thursday, April 5, 2012
Full-Day Interactive Session
9:00 a.m. – 4:00 p.m.

Sheraton Centre Toronto Hotel
123 Queen Street West, Toronto, ON M5H 2M9

• CPD for Members of the Law Society of Upper Canada:
  5.5 Substantive Hours; 0 Professionalism Hours;
  Not accredited for New Members.
• This program has been approved by the Law Society of New Brunswick for 5.5 Continuing Professional Development hours.
• This program has been approved by the Law Society of Saskatchewan for 5.5 Continuing Professional Development credit hours.

The legal definition of harassment is expanding. Harassment is no longer solely a human rights issue. Since the Bill 168 amendments to the Occupational Health and Safety Act came into force, harassment can include personal harassment, or what is commonly known as bullying. However, effective policies and procedures for investigating Code-based harassment can be imported into effective personal harassment investigations, and vice-versa. In this workshop, Lancaster's experts will guide you through the essentials of conducting effective investigations into harassment complaints, drawing attention to key similarities and differences between investigations into personal harassment and those dealing with Code-based harassment:

• Effective policies: What are requirements are the requirements under the OHSA for policies dealing with personal harassment? What are the essential elements of a policy dealing with Code-based harassment? Can employers develop one anti-harassment policy that deals with both personal and Code-based harassment? Should anti-harassment policies set out a procedure for investigating complaints of harassment in addition to establishing the procedures for reporting harassment and the potential consequences of engaging in harassment? How detailed should a collective agreement be in setting out anti-harassment policies and procedures? What are some examples of collective agreement provisions and policies dealing with harassment?

• The Investigator: Should the investigation be conducted by an in-house person or should an external investigator be brought in? Will the investigator only be required to figure out the facts, or to make a determination of what ought to be done? In what circumstances should the union conduct its own independent investigation into allegations of harassment?

• Union Members in Conflict: How should a union handle a complaint when one member of the bargaining unit has accused another member of harassment or violence? Must the union provide representation for accuser and accused? When will a union's decision not to grieve the discipline of a harassing or violent employee violate the duty of fair representation?

• Protection: What procedures should the employer and the union follow to ensure that the rights of the complainant and the accused harasser are respected? To what extent can employers and/or unions guarantee the confidentiality of statements made during the course of the investigation? Should the alleged harasser be removed from the workplace until the investigation is complete? In what circumstances is it acceptable to transfer the complainant or remove the complainant from the workplace pending the outcome of the investigation?

• Interviews: Do witnesses have a right to union representation during investigatory interviews? What about complainants and accused harassers? What information should be given to the respondent or to a third party being interviewed?  Should notes or a witness statement be signed by the interviewee? What types of questions will best get at the facts? How do you ask questions that will result in descriptions of facts rather than conclusions? What are the appropriate techniques for assessing credibility when versions of the events conflict? What documents or other evidence should the investigator seek to obtain?

• The Report: How should evidence be weighed and contradictions resolved? How detailed should a report be? Should certain details be omitted to protect privacy interests? Who is entitled to a copy of the investigation report? What about the investigator's notes and other documents relied upon in the course of the investigation?

• Resolution: If the complaint is founded, how should the employer determine appropriate discipline? When should non-disciplinary solutions, such as apologies, training, counseling, etc., be considered?