by Ashley Lattal
(Originally published for the OBA Labour and Employment Newsletter, June 30, 2015)
Most organizations carefully consider the manner in which a workplace investigation will be carried out. However, a key component of the investigation process is frequently overlooked: communicating the results to the parties. Employment counsel can assist their clients in reducing risk by tailoring an appropriate approach to delivering investigation findings that takes into consideration the history of the conflict, the unique individuals involved, and the relevant workplace dynamics. Failing to do so can increase the risk of escalation of existing conflict, workplace violence, grievances, and lawsuits arising out of the investigation and/or underlying conflict.
The importance of this step was highlighted in a recent case of workplace violence that our firm investigated. The complainant was advised within earshot of other workers that his complaint in a prior harassment investigation had not been substantiated. This shocked and angered him. He was then directed to continue to work. Shortly thereafter, he threatened another employee who he considered to be “aligned” with the respondent in that investigation.
There are many effective ways to communicate investigation findings and this article briefly sets out some initial considerations that may be useful in determining the most appropriate approach.
When Should the Results be Communicated?
The results should be communicated to the parties as promptly as possible so that the parties can begin the process of moving on. Some organizations mistakenly fail to deliver the results at all. This, or any delay, can increase the distraction and anxiety that investigations often create for the parties. If there will be unexpected delay, the parties should be updated as to when they can expect the results. The more swiftly the news can be delivered, the sooner everyone can start to move on.
Consideration should also be given to the time of day, as it can be difficult for a party to hear the findings and continue to work, particularly where there is a likelihood of seeing the other party.
Who Should Communicate the Results?
Where possible, the results should be communicated to parties individually and face-to-face in a place where confidentiality can be assured. Someone knowledgeable about, but not directly involved in the history of the conflict should do so. The workplace investigator is usually not the appropriate person to communicate the findings, given their role as a neutral third party, as well as the preference for the company to control the message. However, it can be useful to provide the parties with a brief letter from the investigator summarizing the findings of the investigation, particularly where there is a level of mistrust of management that may cause either party to be skeptical of the accuracy of the results delivered. In cases involving employees who are represented by a union, it is often useful to involve the union in managing the message to employees.
What Should the Message Include?
In most cases, only the general findings should be communicated without reviewing the evidence. Disclosing too much about how an investigator reached conclusions can lead to further conflict and cause parties to become entrenched in the details.
In situations where the parties to the investigation will have an ongoing relationship, the focus of the message should be on moving forward. Acknowledging the impact the investigation and underlying complaint have had on the parties’ lives can help in this regard, as this is often underestimated and unacknowledged. Both parties often experience a variety of strong emotions, including anxiety, anger, a sense of betrayal, and/or embarrassment that can prevent them from easily moving on.
Parties may also more readily accept the findings by knowing that the organization will be taking steps to help them move forward and to address underlying sources of conflict, such as providing workplace restoration, conflict coaching, and/or restructuring of roles. Until next steps are solidified, the specifics should be kept vague to avoid setting expectations that may not be met.
Complainants are often concerned about the impact of raising a complaint on their career, particularly where their complaint has not been substantiated. Complainants should be reassured that reprisals are prohibited and that any suspicion of same should be raised with management or, if applicable, their union representative.
[Please note that since this article was published, Bill 132 introduced new requirements around communicating the outcome of an investigation. An employer is now required to inform the parties in writing of the "results of the investigation and of any corrective action". The terms "results" and "corrective action" are not defined and the extent of the disclosure required by Bill 132 is not yet clear.]
What Documentation Should be Provided?
In most cases, we do not recommend providing the complete report to the parties. Doing so can escalate conflict, particularly where there will be ongoing relationships, and can open the investigation up to unnecessary scrutiny that may entrench the parties in the details of the conflict. Again, a brief letter from the investigator can assist where there may be mistrust of the person delivering the news. In addition, providing a brief but more detailed executive summary of the findings to the union and/or the parties can also assist to instil confidence in the process and the results.
What Additional Steps Should be Taken?
Consideration should also be given to providing one or all parties with time off after delivering the results in order to provide them a cooling off period. This may help reduce the risk of workplace violence and/or the escalation of conflict. In addition, if one of the parties seems particularly emotional or distraught, a referral to the EAP should be considered.