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.

Managing versus Harassment

“The fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity. There is a natural power imbalance and that supervisor holds the responsibility to exercise that power in a reasonable fashion.^[7]”

The Alberta Occupational Health and Safety Act notes that “an employer taking reasonable actions to manage and direct employees, such as performance coaching is not harassment.^[8]” This is further echoed across the various Canadian jurisdictions, for example the  Ontario OHSA act states “workplace harassment does not include a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace.^[9]

Appropriate and professional actions taken by managers in good faith without the intent to cause harm, humiliation and without malice can vary. These actions might be:

• 1) Setting performance expectations
• 2) Giving feedback and even negative or critical feedback
• 3) Disciplining employees where warranted
• 4) Applying organizational rules
• 5) Implementing changes to work content, processes and requirements
• 6) Conducting difficult conversations about performance
• 7) Potentially denying time off for business reasons^[10].

Some of these types of interactions between employees and their managers might be uncomfortable, stressful and even perhaps unpleasant, but this does not indicate that the actions are harassment. Arbitrators, adjudicators and judges have recognized that managing can be difficult and noted that “an employer is entitled to be critical of the unsatisfactory work of its employees and, in general, to take such measures – disciplinary or otherwise- as it believes to be appropriate to remedy the situation. There is however a limit.^[11]”  The question for most investigators is what is the limit, what makes some negative interactions harassment and others not?

Lawyer Krupa Shah notes that there are 5 key factors when providing employee’s correction:

• 1) Communication – how is the feedback delivered, is it conveyed to the employee in a constructive manner, with the intent to help the employee improve their performance. Is it conveyed professionally?
• 2) Specificity of the feedback- employees need to know what they are doing wrong and how to correct it with specific examples. Managers have the responsibility to provide clear actionable information about what needs to improve, when and how.
• 3) Support and Fairness – Managers need to provide support to help the employee improve their performance, this might look like training, mentoring or coaching. They need to ensure that the employee is given adequate time and support to improve.
• 4) Process – is the process fair, is the performance management process consistent with the procedures and policies of the organization.
• 5) Managerial Attitude- is the manager acting in good faith where they have a genuine performance concern that they legitimately want to help the employee improve. ^[12]

There may exist, however, the belief that managers must manage to a standard of perfection, which is not the case. Managers are not expected to be perfect and the standard established by the courts, adjudicators and arbitrators does not require perfection. Managers are people too and they may have a bad day, a thoughtless moment, or occasionally not demonstrate great management skills. This is reinforced by the often-quoted case of the Government of the Province of British Columbia and British Columbia Government Employee’s Union, 1995. In this case Arbitrator Laing noted the following:

“Harassment like beauty, is a subjective notion. However, harassment must also be viewed objectively. Saying this does not dimmish its significance. It does, however, accentuate the difficulty of capturing its essence in any particular circumstance with precision and certainty.

For example, every act by which a person causes some form of anxiety to another could be labelled as harassment. But, if this is so, there can be no safe interaction between human beings. Sadly, we are not perfect. All of us on occasion are stupid, heedless, thoughtless and insensitive. The question then is, when are we guilty of harassment.

I do no think that every act of workplace foolishness, was intended to be captured by the word “harassment.” This is a serious word, to be used seriously and applied vigorously when the occasion warrants it use. It should not be trivialized, cheapened or devalued by using as a loose label to cover petty acts or foolish words, where the harm by any objective standard is fleeting.^[13]

Arbitrator Luborsky echoed the above comments in their 2005 report on Cara Operations and Teamsters Chemical, Energy and Allied Workers Union, Local 647 where they stated:

“One must be careful not to construct too narrow a definition of “departure from reasonable conduct” lest every perceived slight or subjective inference of abuse might result in paralyzing consequences to the workplace. There is a wide range of personalities that we experience in our interaction with others; not all of which may be pleasing to our individual sensitivities, but which we must live with nevertheless, within legal bounds, developing a certain “thickness of skin” to the challenge of another’s disagreeable mannerisms might present.^[14]”

If the standard for what is considered harassing behaviour is too low then it would restrict a manager from providing any negative feedback and holding employees accountable to the requirements of their job. This is not the ideal situation as organizations want employees to perform at their best and want to be able to provide feedback, correction and support.

Employees may find that they do not appreciate how their supervisor provides feedback or correction. It would not be uncommon to find that employees work with managers whom they actually do not like, managers who may not communicate or provide feedback in the manner an employee would prefer, and managers who are abrupt, rude or insensitive.  However, a single act of rudeness, abrupt interactions or a thoughtless comment does not necessarily constitute harassment.

In the 2012 case of Amodeo vs Craiglee Nursing Home it was alleged that the Director of Care shouted at an employee in the course of a private meeting of which the arbitrator found that it did not constitute a course of vexatious conduct or comment.  The Adjudicator went on to say that in this case:

“The worst that can be said of what happened is that the Director made a blunt unflattering assessment of the employee’s performance and demanded in no uncertain terms that she fulfills management’s work expectations or risk discipline. Arguably, the Director might have utilized greater tact and sensitivity. But as was stated the reality is that sometimes the exercise of management functions- which is what the Director was engaging in- results in unpleasant consequences for workers. That does not necessarily translate into workplace harassment. ^[15]

The courts, arbitrators and adjudicators have often indicated that managerial behaviour could be better, but that it does not necessarily constitute harassment. Ideally a manager would model appropriate behaviours and conduct themselves in a professional manner. This is not always the case; there are poor managers, and some are not great role models. Managing people is a difficult job and sometimes difficult conversations must occur, especially when there are certain deficiencies in an employee’s job performance, job responsibilities and work-related behaviours. It is often in these difficult conversations where less than ideal manager communication or behaviour occurs. An investigator needs to know what acceptable managerial conduct is and what is not.

More leeway has been given to managers when poor behaviour and comments or bad presentation of information relates to legitimate managerial functions. More grace is given to managers when they are just trying to do their job, even if it is less than ideal.  However, when manager comments are personal, mean-spirited, belittling or made in bad faith and behaviour is targeted or vexatious it would be considered harassment and not related to legitimate business management. Shah notes that the following factors may be used to evaluate behaviour to determine if it is harassing.

• 1) Pattern or Repetition – is the poor behaviour a single incident or is it continuing or follows a pattern? If the incident is repeated or ongoing it is more likely to be considered harassment.
• 2) The severity of the actions and language used- repeated use of profanity, discriminatory slurs, gratuitous and non-work-related comments, name calling, menacing or threatening gestures, yelling or raised voices especially in public, or demeaning or humiliating conduct in front of colleagues is in most cases considered harassment. Is there evidence of humiliation, personal attacks or personal insults unrelated to legitimate managerial work direction, correction or feedback.
• 3) Impact of the actions and the legal threshold– what is the impact of the managerial actions, negative work-related feedback may cause embarrassment or discomfort, but does it cause an inability for the parties to continue to work together. Harassment has a long-lasting and very impactful effect on the employee. Have managerial actions created an intolerable work environment; in that case it would be most likely harassment.
• 4) Nature of the relationship – this is where the investigator needs to look at the level of interaction between the parties in terms of how long the parties have worked together, what is the history between the parties, how frequently do they interact, does the work require them to work together often. ^[16] Some judgement is required on the part of the investigator to determine what the nature of the relationship is and if the manager is abusing their position of power.

The “Silent Treatment” is it Harassment?

Throughout this section we have looked at outward or blatant actions by managers, but what about less obvious actions such as ignoring an employee, ostracizing or excluding an employee. These types of actions may be more difficult to determine if they are harassment due to the less overt nature of the interactions. The identification of harassment can be assisted by having very robust policies that identify things such as ignoring employees or giving someone the “silent treatment” as harassment. This was the case in a discipline grievance between the United Nurses of Alberta and Alberta Health Services. In this grievance the Supervisor was upset with an employee whom they felt “tattled” on them to the manager. The Supervisor engaged in the “silent treatment” where the Supervisor interacted with the employee only on an as needs basis and avoided all social interactions or pleasantries. The Supervisor did not respond to the employee’s request to speak about the incident and ignored text messages and verbal request to discuss the matter. Alberta Health Services had developed the Employee Toolkit to Adress Bullying which identified several common bullying behaviours including “excluding a person from on-the-job socializing, giving a person the “silent treatment,” using body language to convey an unfavorable opinion of someone.^[17]”

These were the identified behaviours the Supervisor had been subjecting the employee to. To remedy the situation the employee had been trying politely over the course of a few weeks, to get the Supervisor to engage with him; to talk with him about the incident but the Supervisor completely ignored the employee. The Arbitrator found that the disciplinary written warning given to the Supervisor was suitable and that the act of ignoring and giving the “silent treatment” was a form of bullying and harassment according to their Employee Toolkit.

Another example of good policies is in the case of Shawn LeMay and the Attorney General of Canda.   Staff Sergeant LeMay was found to have breached the Code of Conduct of the Royal Canadian Police when he routinely ignored a staff member and gave the staff member the “silent treatment.” The staff member repeatedly attempted to speak to Staff Sergeant LeMay to discuss why he was angry with her and Le May refused to respond. The arbitrator found that Staff Sergeant LeMay’s treatment of the staff member did constitute harassment under the code of conduct because their roles required them to work closely together and communicate. The arbitrator found that LeMay was not just being quiet, but that the behaviour was intentional and that he knew it was upsetting to the staff member.  Also noted was the fact that LeMay did not display these similar behaviours to his superiors only a subordinate.^[18] Not all policies or procedures will directly address “ignoring” or “the silent treatment” but the recent court decisions and arbitrations have indicated that this type of behaviour can be harassment and can be considered psychological harassment depending on the factors.

Context is going to be very important in these more subtle cases of harassment. An investigator will want to look at some key factors in the context.

• Nature of the relationship: are the parties colleagues or subordinate/superior. Is there a power differential between the parties. Silent treatment harassment has been found to occur between colleagues, but it is considered more impactful when it is a subordinate/superior relationship.
• What is the history between the parties: have the parties been friendly and collegial in the past and something has changed? Has there been a marked change in behaviour?
• What is the setting and frequency of interactions: are the parties required to communicate and interact on a regular basis due to the nature of their work? If the parties are required to work more closely with each other, the silent treatment can be far more detrimental and may also affect the organization or business.
• Is there differential treatment: is a specific person being singled out, is it obvious to others that there is exclusion going on?
• What is the impact on the complainant: are they distressed by the behaviour and have they tried to resolve the impasse and been thwarted?^[19]

Determining if a manager’s actions are harassment or just poor management can be difficult but looking at the nature of and the contextual factors surrounding the interactions should help to determine if the interaction is based on legitimate work-related matters or otherwise.

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.