Politicizing workplace investigations
Friday, November 20, 2020 @ 9:54 AM | By Christopher Achkar
Not only do investigations assist employers in determining facts, investigations can also bring to light issues that require training or discipline and work to prevent such issues from occurring in the future.
The dangers that have been creeping through, however, have been that investigations themselves are being scrutinized, without merit, as tools of employers, tools of oppression, even when employers are making genuine attempts at resolving workplace disputes.
How investigations work
When an employee files a complaint with their employer regarding a workplace issue or incident, such as harassment or violence in the workplace, employers must respond and address these issues thoroughly. Failing to address employee concerns, or even acknowledging those concerns, may expose the employer to liability — before an investigation even begins.
While employers are not always able to resolve or understand certain allegations, employees take note of how employers react to their concerns — and appearance of nonchalance may encourage employees to seek their rights at the Ministry of Labour or by seeking legal counsel. Having a complaint process in place helps ensure allegations of harassment, discrimination or bullying are handled thoroughly and clearly sets out resolution process.
While workplace investigations are not expected to be perfect, employers may want to bypass conducting their own investigation and hire a third-party investigator. This often helps employees feel heard by a party, not necessarily their own employer.
Workplace investigations do not typically require a rigorous process, so long as the investigation and the associated steps are fair, competent and reasonable. Investigators should develop and use clear and strict guidelines which aim to remove any potential inherent bias, in either the investigator’s decision-making process, or the process itself.
Employees have recently started voicing concerns surrounding the hired third-party themselves being biased or discriminatory — not taking their individual concerns seriously. They feel the investigator is only fulfilling a mandate — and because they are getting paid by the employer, then their decision is going to be inherently unfair.
There are instances where employees are refusing to engage in perfectly lawful and genuine investigations to address concerns — in the process, unfortunately, virtue-signalling to otherwise perfectly legitimate societal problems.
While that certainly may be the case with some investigators, a number of them are hired by the law firms who represent the employers. This is done for various legal reasons, including maintaining confidentiality — however, often, the investigative party has no ulterior motive other than providing neutral information.
Instead of addressing the concern surrounding the investigator’s neutrality, some employers are using a take-it-or-leave-it approach with employees. This further fuels employees’ grievances and agitation, as well as further allegations of sexism, racism and all other sorts of -isms, legitimate or otherwise.
COVID has spelled despair for people across all walks of life — employers and employees, alike. It is perfectly fine not to initiate litigation and find resolution — but that is not the attitude being followed.
That said, the onus is largely on the employer to avoid being sued. And the task is simple — be empathetic and show your work on paper that you are being empathetic towards each of your employees.
Employers should not take these concerns lightly because if employees issue claims against their employers, businesses are required to respond to these allegations by hiring a lawyer. To avoid the added cost of legal fees and litigation, having an HR firm or a law firm that you work closely with can help avoid problems.
Not only can professionals help you avoid these issues, but they can also help you actually stay ahead of the curve and address issues of morale, productivity and performance in a way that propels businesses faster than cracking the whip.
Christopher Achkar is the founder and principal at Achkar Law, a law firm advising on all labour, employment and human rights law issues. Along with his team of lawyers, he advises employers of all sizes on all workplace related issues, including civil litigation, human resources advice and human rights issues. You can reach him at firstname.lastname@example.org.
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