4 Chapter 4 Fact-Finding: Pre-Screening/Fact Finding

What to do with a complaint.

In Chapter 1 it was noted that there are different kinds of complaints and, depending upon the type of complaint, the employer may choose to respond differently. These could include complaints of misconduct made by a supervisor or manager, or complaints of workplace discrimination, harassment or violence which can be made by a supervisor, manager, employee, or external individual. When an employer receives a complaint or is advised of an issue of workplace misconduct, they have several options how to handle the complaint. The employer may do one of the following:

• Receive the complaint, file it and do nothing at this point in time, informing the complainant of such.
• Conduct some preliminary fact finding to determine if there is merit to the complaint
• Immediately launch an investigation.
• Recommend a different resolution method: mediation, an environmental scan, referral to law enforcement for criminal investigation, etc.

The employer, however, should not delay acting on the complaint for long periods of time while they consider how to proceed. They should decide what to do with the complaint in an expeditious manner, even if that means informing the complainant that they have chosen to do nothing with the complaint.

If a complaint is not addressed in a timely manner complainants may feel that their complaint was not taken seriously, supervisors may lose faith that HR is going to act (one way or another), respondents may be lulled into a false sense of security that the organization is going to do nothing and memories of witnesses who can provide information on the issue may fade.

Receiving a Complaint

When HR receives a complaint, they should follow the requirements in the organizations policy and procedure. Although complaints may be made verbally, ideally, they should be captured in writing. This allows the person to list details, dates and particulars of the complaint. This also allows the investigator to later use that information in the formation of questions and follow up.

If a complainant is not willing to take the time to write out a complaint, it may beg the question of how important the complaint is. If someone is reluctant to write out their accusation it is important to find out why; is the reluctance coming from a place of fear, do they feel the issue is not serious enough to warrant the effort, or are they disinterested in pursuing a formal complaint?

A written complaint should list as many details as possible including dates, names, places, and times. It is helpful to have concerns listed in chronological order if possible. If someone cannot remember a specific date, time, or place this does not mean that the complaint is not true, as memories fade and upsetting events can blur in one’s mind. The document should also name the person that the complaint is against. It is very difficult for HR staff to look into a complaint without knowing who the concerns are about. If someone has a complaint but does not want to say who it is against, they may need more time to feel comfortable naming the person or have reassurances that retaliation is not tolerated. However, there is a fine balance when looking at a complaint between empathy and scrutiny, an HR professional will want to be empathic but not let it blur good judgement.

The complainant should note what they want as a result of the complaint, although if they don’t know at the time of the complaint that is also acceptable. This is important when pre-screening the complaint as sometimes what the complainant wants is something as simple as an acknowledgement and apology. If the person has unreasonable expectations or seeks disproportionate consequences for the alleged infraction it also provides insight into the complainant. For example, if a complainant alleged that someone called them an “old bag” and the only resolution they will accept is that person being fired; there seems to be disconnect between the alleged infraction and the expected outcome. The investigator will want to question if there is something else going on that might be influencing the complainant’s expectations.

Pre-Screening

When receiving a complaint, the process should include some kind of pre-screening to determine if a complaint falls within the provisions of the company’s policies, human rights legislation or OH and S legislation. This is true of manager/supervisor-initiated complaints, complaints from employees and issues raised by other individuals. Sometimes a supervisor or manager may want to investigate someone whose workplace behavior is bothersome which, while irritating, does not violate any codes of conduct, rules, or policies. There may be situations where a different resolution process than investigation is more appropriate for the circumstances.

The pre-screening criteria should be transparent so that individuals understand how their complaint will be evaluated and what they should include in their complaint. This may help to weed out unwarranted or vexatious complaints.

The HR department should identify who will be doing the pre-screening of complaints and ensure that they have the knowledge of relevant policies, legislation and/or other rules as well as the pre-screening criteria that need to be considered in reviewing the complaint. Communication to the complainant once pre-screening is completed should be very clear as to whether or not a complaint will be accepted and investigated. Individuals may make several attempts at submitting a complaint believing that if they simply word it differently it will be accepted. The pre-screener should have a conversation with the complainant to ensure that they understand why their complaint was accepted or rejected.

If a complaint is not accepted as it did not meet the criteria established in the organizations policies, there may be an appeal process. An appeal process may be a formal meeting between the pre-screener, union representative (if applicable) and the complainant; where the pre-screener reviews the criteria of a complaint and details where a complaint does not meet the established criteria. Some appeal processes may have an independent third party review the complaint as a second set of eyes. An appeal process in a complaint procedure will assist complainants who feel that they are being “stonewalled” by an organization. The appeal process will not tell the complainant what to write or manipulate the facts it simply reviews the information provided against the policy criteria.

What is Fact Finding?

Prior to jumping into a full-scale investigation, employers may conduct a fact-finding exercise. Fact finding is an opportunity to further identify the issue and clarify relevant facts. At this stage the employer has not committed to a full workplace investigation. Fact finding helps one understand the situation, gather basic information and determine if further action is warranted, which may include a more detailed investigation.

A human resources department will need to determine if there is potential wrongdoing and if so, is it something that needs to be investigated? Fact finding is a preliminary high-level review of the issue based on the available information. Fact finding may give the employer confidence that they can act on the complaint without an investigation, or it may identify gaps in information that need to be investigated prior to any action being taken.

For complaints of discrimination or harassment made by an employee or other person who is not a supervisor or manager, the fact finding may be conducted by the human resources department as mentioned, or it may be conducted by a third party such as an Office of the Ombudsperson, Office of Safe Disclosure, Whistleblower office, etc. Often in larger organizations a party outside of human resources conducts the fact finding and then passes on complaints that require investigation or other action to human resources to complete. In smaller organizations the human resources office may be acting as both the fact finder and the investigator.

Fact-Finding Information

Prior to reviewing the information in fact finding there are a few key pieces of information that are required:

• If the complaint is not written out it should be written out
• If the supervisor/manager has provided a verbal account of misconduct it should be put into writing.
• If witness statements or other statements are available, they can be reviewed.
• Applicable policies, procedures, legislation, standards, and agreements should be referred to.
• Is there any evidence available at this point? – documents, photos, emails etc.
• A review of any previous infractions that are similar to establish any patterns of behaviour.

The fact finder will want to gather as much available information as possible to help them determine if a detailed investigation is necessary. Likely there will not be complete information at this point. It is vital to consider the alleged infraction keeping in mind existing policies, procedures, legislation, standards, and agreements to ascertain if there is a potential violation of any of these standards. Sometimes there may be undesirable behaviour in the workplace but the behaviour may not actually violate any policies, procedures, legislation, standard or agreement. In that case a detailed investigation would not be required, but human resources may recommend another approach to deal with the complaint such as coaching and counselling. If the fact finder is not sure if there is a violation, then an investigation may be required to establish that fact.

After the fact finder gathers all the above-mentioned information, they will then need to review the information and refer to the investigation policy or procedure, or applicable legislation, as criteria to determine if an investigation is warranted or not.

Limited Interviewing in fact finding

Fact finding is an informal process used to gather more information prior to an investigation. At the fact-finding stage the fact finder may want to speak with the complainant who has identified an issue. This is not a formal interview, but information gathered in this process should be well documented. The fact finder will want to ensure that the complaint is as detailed as possible with regards to dates, timeline, events, witnesses.

This step is simply to ensure that there is a basic understanding of the situation, and the main facts are captured correctly. This step is easily completed when the complainant is a supervisor or manager (who are out of scope in a unionized setting). It could be completed through a phone call or meeting to understand what transpired in the workplace that might be deemed as misconduct. The complainant should be informed that the meeting is to clarify details that will assist in determining next steps and it is likely that if the matter goes to investigation the complainant will meet again with the investigator to be formally interviewed.

In a unionized environment, the fact finder should confirm if union representation is required for a complainant at this stage if they are a union member. This is important as any subsequent investigation may be deemed as invalid if the collective agreement rights to representation have been violated. The fact finder will need to remain neutral, and not make any promises to a complainant what the outcome may be. The fact finder should remember to ask, “what does the complainant want,” which may also help to inform the course of action. Sometimes a complainant may want an apology, or they may want someone fired – the fact finder will likely want to know this to be able to pass on to the investigator should the complaint proceed.

The criteria to investigate:

As stated previously, when a complaint is received the fact finder will need to evaluate the complaint to determine if an investigation is warranted. In addition to the policies, procedures, legislation, standards, and agreements that are applicable to the organization, below is a list of possible considerations to help determine whether a complaint should be investigated:

• Consider the type of complaint or issue. Is it something that is within the employer’s control to investigate?
• Is there a possibility that harm could come to an employee? Is there a possibility of continued harm to an employee?
• Is there a possibility of illegal or criminal activity that must be investigated?
• Is there a possibility that this misconduct could result in further legal proceedings?
• Does the employer have an obligation to investigate under legislation?
• Could the complaint or issue impact the organization’s reputation?
• Have there been similar complaints that have been investigated? The employer will want to be consistent.^[1]

When are Investigations Necessary?

When deciding whether to investigate a matter, author Hena Singh suggests that the HR practitioner ask themselves the following questions:

• If what is alleged is true, is the behaviour a breach of policy, procedure, standard or legislation?
• Is the alleged behaviour possible?^[2]

The first question is fairly easy for a fact finder to answer by looking at the policies and procedures, standards and legislation. Most human resources professionals are not lawyers so it may be less clear if a law has been broken and, in those cases, it may be best to seek guidance from legal counsel.

The following typical issues require an investigation according to the first question.

• “Workplace harassment, workplace violence or discrimination – Allegations of harassment, violence or discrimination in the workplace are some of the most investigated issues in workplaces, because these issues involve human conflict. As discussed, employers have an obligation to protect employees and ensure that their work environments are safe. If there is a threat to this safety employers must take action.
• Criminal activity- Employers are generally interested to know the facts surrounding alleged criminal activity. This is especially relevant if the events took place in the workplace and it can impact the company, its reputation, its bottom line and/or the morale of the workers.
• Serious breaches of company policy – It is prudent for employers to conduct a proper investigation before drawing conclusions and determining solutions.
• General Inappropriate behaviour – It is common for employers to want to address behaviour or allegations that they feel is inappropriate conduct for the workplace. An investigation or a workplace assessment can be conducted to reveal if there is a problem that requires intervention by an employer. Despite that there have been no formal complaints made, an investigation can potentially save a company a significant amount of future attrition and reputational harm if the behaviour causing the attrition can be identified and addressed and corrected.”^[3]

This brings the HR practitioner to the second question. It may be evident that if the alleged behaviour occurred it is a breach of policy, procedure, standard or legislation, but the second question looks at possibility of the alleged behaviour. Is the alleged behaviour or conduct possible? For example, if an employee alleges that they were harassed on a certain date, and is adamant that the date is correct, and it turns out that the alleged harasser was on vacation that date and not in the workplace, that would indicate that the alleged behaviour is not possible. Because in this example the alleged behavior would not be possible, the allegation would likely not require investigation.

When it is not clear cut if an investigation is required?

What about the times when it is not as clear cut, when the alleged behaviour may or may not be a violation of a policy, procedure, standard or piece of legislation, depending upon the context? What if the alleged behaviour is possible, but there is some conflicting information about it (such as the person was not sure on the date of the harassment). Author Hena Singh suggests that the HR practitioner be guided by an additional question:

Is there is an unresolved issue/conflict that can impact one or more workers and where there is conflicting information? She notes that if the answer to the questions is “yes” then an organization should investigate.”^[4]

If the fact finder is simply not sure about the issue and there is conflicting information, but the potential impact to employees, the organization or reputational risks are present, then an investigation may be the most prudent course of action.

Benefits of Investigations

Not all investigations result in punitive action being taken by the company against a respondent but may have additional benefits that are not evident at the time of the complaint. Some results of investigations may include the following:

1. Identified problems can lead to solutions
2. Providing fairness
3. Enforcing company values and policies
4. Company reputation
5. Legal Requirements

If the employer knows (or ought reasonably to have known) that there is an issue in the workplace that can impact the health (including mental health) and safety of the workers there is an obligation on the employee to investigate the issues the proper solution can be found. ^[5]

In 2021, at a pharmaceutical company in Ontario received a complaint of workplace bullying made by an employee against their supervisor. Fact finding was conducted and it was deemed that if true the allegations would be a breach of the company’s harassment policy. An investigation was conducted, the supervisor was found not to have bullied the employee. However, during the course of the investigation the investigator determined that the employee who had made the complaint of bullying was actually engaging in inappropriate work behaviours. This allowed for an external full-scale review of the department and allowed the employer to address a toxic environment.

Typical Issues Requiring Investigation

The type of incidents or workplace behaviours that require investigation is varied and innumerable. Although not an exhaustive list, some of the common issues that require investigation are detailed below:

1) workplace violence or threatened workplace violence

2) violation of the drug and alcohol policies

3) fraud or misrepresentation

4) theft

5) misuse of property

6) accidents, safety violations

7) employee misconduct

8) inappropriate workplace behaviour

9) repeated absenteeism, tardiness or unexcused absences

10) repeated performance or behavioural issues

Subjective and Objective Assessment – harassment

One of the challenges for a fact finder is how to determine if certain workplace behaviours constitute harassment. Context is very important in assessing harassment, and the fact finder must assess whether the behavior is subjectively and/or objectively harassing.

“There is both a subjective and objective component to the reasonable person test. The subjective component includes the harasser’s own knowledge of how their behaviour would be received. The objective component considers how a “reasonable” independent participant would receive the alleged behaviour. As such, an investigator can conclude on the basis of the totality of the evidence that an individual knew, or should have known, that their actions were unwelcome. The response of the complainant may be indicative of the unwelcome nature even if they do not specifically object to the behaviour. For example, if they walk away.” ^[6]

If Kelly and Paul are good friends and are kidding around and Paul makes an offensive statement to Kelly, is it harassment if Kelly is not offended? From the objective point of view, if an independent reasonable person would find the comment offensive and would constitute harassment, it is considered harassment.

From the subjective point of view, if Paul knew the comment was offensive, it would also be harassment.

What if Paul did not know better, he did not receive training or was unaware of the policy? In that context, it really does not matter because it would still meet the independent reasonable person test as being harassment if on the objective standard an independent reasonable person would find the comment offensive.

There may be cases where the fact finder will have to decide if an investigation is warranted. Where due to training and workplace policies the respondent should have known better, it may still be investigated as harassment on the objective standard.

This leads to the question about if the complainant feels that they were harassed, but an independent reasonable person would not view it as harassment (objective), and the respondent felt that their words or behaviour were not unwelcome (subjective) is it still harassment? In that case, the fact finder can decide an investigation is not warranted.  According to the harassment test it does not meet the definition of either objective or subjective harassment. If an organization can comfortably walk away from the complaint without an investigation, they may do so, but may be asked to justify their decision should a complainant pursue the complaint through a different avenue.

Sometimes a complaint requires immediate action. Either the fact finder or a human resources practitioner must take immediate action to diffuse a situation and allow time to determine if an investigation is required or an alternative dispute resolution mechanism is more appropriate. This may mean putting an interim measure in place that will protect the employees, the worksite, or the company while next steps are determined. Interim measures may include a non-disciplinary suspension of an employee with pay, temporarily moving an employee’s work location or temporarily changing their work or working hours. This is especially useful in cases of discrimination or harassment when the employer wants to immediately stop any potential for further harm coming to the individuals involved, or any witnesses.

Written Statements (Witness Statements)

Part of the process to determine if an investigation is required is gathering witness information. Sometimes complainants, including supervisors or managers, may know individuals who witnesses the incident, behaviour or conduct. The fact finder may ask these witnesses to write out their statements. This has a two-fold benefit of helping people to capture what they saw or heard while it is still fresh in their minds and providing a written account of what transpired that can be compared to the complaint as submitted.

In a unionized environment most collective agreements will allow supervisors to ask unionized employees to write out a statement of what they experienced/saw; as long as the supervisor does not question the individual. It is important for the fact finder to know what they can and cannot ask for at the fact-finding stage and what would be considered as conducting a formal investigation.

The value of having a written witness statement is that should an investigation move forward, the investigator will have a general idea of what a witness is going to share in their interview. They can also check the veracity of that interview against what was originally written and identify any discrepancies.

Who should investigate (internal or external)?

If a fact finder determines that an investigation is required they have to decide who is the best person to conduct the investigation. If the organization has a trained and trusted neutral investigator most misconduct can be investigated in-house. If the Human Resources Department is going to investigate it is important that the staff have been trained on conducting workplace investigations.

Managers may also conduct investigations if they have the appropriate training, but it is crucial that they do not have a significant connection to the parties involved, or a personal stake in the outcome. If there will be a perception of bias, then an organization may want to secure an external investigator. In a unionized environment an external investigator may be more appropriate to avoid the perception of bias.

When selecting an external investigator, the organization should ensure that any external investigator is licensed through the province of Alberta and will follow the processes and policy the organization has in place.

An organization may decide that external investigators are costly and time consuming and want to develop the investigation abilities of their own in-house staff. HR professionals and managers who are learning to conduct investigations may want to shadow an external investigator to get some experience in how to conduct investigations.

It is interesting to note that if an organization has an in-house workplace investigator whose job is solely to investigate workplace complaints within that workplace, they will also need to be licensed in the Province of Alberta. It is important that the in-house investigator maintains a reputation for being impartial and unbiased. If their reputation has been brought into question the parties to an investigation may be far less likely to accept the results of the investigation. This is especially true in unionized organizations.

Regardless of if an investigator is internal or external to the organization, they need to familiarize themselves with the organization’s policies, procedures and processes. The investigator must conduct the investigation according to the organization’s requirements.