In recent decisions, arbitrators and courts have emphasized that employers are legally required to conduct an “objective” investigation into workplace issues and conflict. They have done so both through their words – and through the significant damages they have awarded in circumstances where they have determined that management has been biased in its approach to a workplace conflict.
Although we use the term “objective” frequently – and while the concept is an important one – just what should management consider in conducting an “objective” investigation? Here are some suggestions:
- The initial “complaint” or “concern” (informal or formal) that comes forward simply reflects an issue/dynamic that needs to be reviewed further. It is a “trigger” for an investigation, but does not define or restrict the content or potential outcome of that investigation.
- The complaint/concern itself is only one person’s perception of the issue/dysfunction and may not be entirely accurate, if at all. The role of the investigator is to review, diagnose and remedy the concern based upon the objective investigative findings. The investigator’s role is not to simply confirm or deny the complaint as framed by the person who brought it forward. Importantly, the “person who brought it forward” may be a supervisor (speaking about an employee) or an employee (speaking about a supervisor or co-worker).
- Related to this, an investigator should not assume that the person coming forward is in the right and the respondent is “likely guilty” of whatever he/she is being accused of. The role of those involved, the behaviour in which they engaged, and their impact (positive or negative) on the overall environment must be based upon an objective inquiry into the workplace dynamics.
- The “investigator” should be neutral and should have no significant prior involvement in the issue or with particular parties. Otherwise, he/she may face an allegation of bias. The investigator should not be – and should not be seen to be – acting “on behalf of” management or a particular employee. The investigator should be acting on behalf of “getting to the bottom of the problem” as it actually exists.
- The conclusions should be based upon the findings, and not the other way around. Many investigations have been “thrown out” because the investigator pre-judged the situation, arrived at a premature/biased conclusion about certain individuals/events and then collected apparently “objective” evidence to support that conclusion.
- The investigator should treat the Complainant, Respondent and witnesses in a balanced and fair manner. I call this the “Mirror” test: whatever rights and entitlements are provided to one party should be provided to the other party.
- Although subjective perceptions and feelings are important, an investigator has to base the final conclusions on objective evidence. That is, upon a review of the information collected in interviews, documents, emails and otherwise, what was said or done and by whom? In what manner was it said or done? Does the conduct (of one or more individuals) constitute a violation of workplace policies, human rights, Worksafe BC or otherwise?
- Employees may “feel” as if they have been bullied or harassed but, objectively, there is no evidence supporting such allegations. Similarly, supervisors might “feel” as if they managed a situation with the best of intentions: however, if they crossed the line, they crossed the line. “Feelings” do not create bullies and the “best of intentions” do not protect them.
Although an objective investigation does not guarantee that conclusions will be upheld, a biased investigation guarantees they won’t. More importantly, an objective investigation will ensure that your organization remedies the problems that actually exist rather than spending time and money on those that don’t.