By Kellie Auld, CHRP

Even if you are not a listener of CBC Radio One, you have likely heard the name Jian Ghomeshi and are aware of his connection to what has become a well-publicized sexual harassment case. As host of “Q”, Ghomeshi had become a household name for many, but it is unlikely that either he or the CBC would have wanted the spotlight now garnered.

Regardless of who posted what first to social media or the eventual outcome, this case clearly brings to light the importance of conducting professional, discrete workplace investigations. It also demonstrates what the fallout can be when organizations don’t act upon information of alleged misconduct.

Accusations Require Action
The Fifth Estate’s interview with Chris Boyce, executive director of radio at CBC and a central figure in the handling of the case, provides interesting insights into matters of privacy, process and prudence alike. (bit.ly/1aVJfQ6) It also provides a cautionary tale for all organizations.

While most organizations are unlikely to receive the kind of media attention this situation has, there are lessons to be taken away from it for all. First and foremost, if an employer receives complaints of misconduct in the workplace (violations of policies or otherwise), some action must be taken to address the complaint. The action taken may be no more than making informal inquiries to determine the validity of the complaint.

The worst thing you can do is nothing.

Questions Key to Investigation Process
Several things must be considered with workplace investigations. Upon receiving a complaint, review your policies to be sure you understand how to proceed appropriately in the circumstances.

Ask yourself, do you need to consider an external person? Some types of investigations, particularly where serious misconduct is being explored, will always benefit from the involvement of licensed professionals or legal counsel. That said, while outside of OHS and Human Rights there is no common law duty to investigate workplace misconduct, failure to do so can carry its own consequences.

It’s best to sit down and write out an investigation plan to determine what steps you will take to move forward. The questions that follow will help establish the process:

• Will you be able to dedicate the time and energy required to devote to the investigation?
• How will you ensure privacy and confidentiality? Who will you interview and in what order?
• Is there a reason to separate the complainant and respondent?
• If the allegations are serious, do you have the ability to suspend your employees? (Bear in mind that administrative suspensions must be written into your policies to consider them or you could be facing a constructive dismissal claim.) bit.ly/1IevAPc

Managing Workplace Impacts
The one other question that needs to be considered above all others from the HR perspective is, “How can an investigation impact others in the organization?”

For example, should you let employees know that an investigation is underway and that they may be called upon as witnesses? Or, do will you leave that alone and risk allowing the employees to speculate as to what’s happening? What could the potential consequences be in either case?

These questions are raised because experience has taught us that people will talk. While there may not be first-hand witnesses to certain events, we are dealing with people and, let’s face it, investigations can cast an aura of mystery and intrigue in the workplace—as well as online.

Social Media: Minding the New Frontier
Another aspect of workplace investigations brought to the forefront by the Ghomeshi affair is the undeniable impact of social media. This is an area where employers need to be developing better policies; without express notification to employees regarding social media, there are instances in which privacy would prevent certain investigative tools from coming into play.

While much ‘appears’ to depend upon who owns the communication devices and when and where the comments were made—via email, twittered or posted to Facebook, LinkedIn, etc.—employee online liberties are governable only as established by organizational policy.

Employers need to establish policies that make clear that such comments could result in discipline, but even then, need to be able to demonstrate how such comments negatively impact the reputation and/or financial returns of the business. In other words, where social media is concerned, it is a new frontier for workplace investigations, and reaching out for legal assistance and insight is becoming common practice.

Impartiality, Trust and Accountability
As HR practitioners, we are responsible to model and develop a culture of impartiality, trust and accountability. Being professional, discreet and respectful are crucial.  If you want a healthy workplace, people must feel safe and protected by the organization.

Investigations are definitely one of those areas where HR professionals have to consider employees’ perceptions in terms of the fine balance between management and themselves. If an investigation involves either a serious allegation or a member of the management team, I recommend an employer seriously consider an external investigator.

Bigger Pictures and Privacy
When you are working on your investigation plan, be sure to consider other policies that may be relevant, outside of the one the complaint came in under. Also, consider relevant legislation.

As an example, a sexual harassment complaint such as Jian Ghomeshi’s would involve more than a policy violation. It could involve a breach in a code of conduct or standards, human rights violations, and/or occupational health and safety and criminal code offenses.

Also, consider the privacy and confidentiality pieces:

• Should your interviews be held off site?
• Do you know which individuals have information, so you can honour privacy and confidentiality?
• Are you having everyone involved sign off on an independent confidentiality statement?
• Do you have the right type of interviewing skills to conduct an investigation? (Yes, they are a different skill set than what would be used in job interviewing.)

Closure Crucial For All Parties
Organizations must also be mindful of what happens after the investigation. Do we only provide support for the complainant? Many do not think much past that point, even though the respondent likely needs support as well, regardless of whether or not the allegations are founded.

What about the witnesses? If your organization does not have an Employee Assistance Program, should we still recommend counseling? How do we get things back into production when the ‘drama’ is over?

What is abundantly clear is that as an employer, once you are aware of inappropriate conduct in your workplace, you must do something. As mentioned, it may not be a large investigation, but it’s dangerous to just take a complaint, thank the person for bringing it to you and not take action.

Engage Futures Proactively
This holds particularly true with the passing of Bill 14 in British Columbia and the legalities around mental wellness in the workplace. While the WorkSafeBC legislation is still fairly new, given the number of complaints that came forward when the legislation first came out, HR professionals can likely count on an increase in investigations.

As such, we need to think more proactively around the impact of investigations on our workplace culture and ensure that skills in this area are added to our HR toolboxes.

Investigations handled with care carry their own rewards. Handled poorly—or not at all—they can destroy trust and disengage employees. As the importance and impact of trust and engagement are topics long tabled by HR and increasingly broader circles of business leadership, the message surrounding workplace investigations is clear—handle with care.

Kellie Auld, CHRP, PID, CACE is a Licensed Professional Private Investigator who specializes in workplace investigations.

(PeopleTalk Summer 2015)