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Scope Creep

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How creeping goalposts can skew an entire process and leave you vulnerable on appeal.

The formal investigation of harassment and discrimination cases can be some of the most stressful and challenging work a Human Resource professional is required to accomplish. The way is fraught with peril including: heightened emotions from the main parties (complainant and respondent) and the entire workgroup, and pressure with respect to the time required, not to mention the potential legal ramifications down the road. 

A lack of direction and lack of functional training in conducting a fair and unbiased process can exacerbate the problems and stresses you face.

One of the biggest problems, right from the outset of an investigation relates to what we call Scope Creep. I am sure you have heard the term or may have already been a victim of this issue. Essentially, scope creep refers to an investigation that has an unclear purpose, a lack of focus and clarity. As a result, it can be difficult or impossible to come to a relevant finding, based on the evidence, which will withstand external scrutiny. Often we are left with findings such as the classic “he said/she said” conclusion, or making conclusions on elements that were not the subject of the investigation and that the parties did not sufficiently appreciate during the course of the investigation. We find a myriad of unintended consequences as a result of scope creep including: increased anxiety and stress in the work group, increased resistance from the employee group and the union to investigative processes, increased time and costs associated with the investigation and less credible investigations as a whole.

There is value in battling scope creep. Here is how I do it.

First, I define the scope of the investigation. I ask myself this question, “What is the complainant saying the respondent did to them that would constitute a breach to the relevant policy?” This requires some information, usually provided by the client in the form of the initial complaint, along with the relevant policy. 

Here is where I see the first error, typically. When people are in conflict, they will usually tell the investigator about every issue or concern they have with the other person. Our scope begins to creep. The complainant will tell you things like they did not agree with a decision that their manager made. They will bring up concerns that they have about how their co-worker has treated others. They will tell you about the thing that they heard from their co-worker, who heard it from someone at their second job that relates to the person they are complaining about. They will tell you that they know the respondent is having an extra-marital affair…and more. If you have conducted more than one investigation, you have likely experienced these examples and many more. How are they relevant to the complaint? That is a question that I ask myself, early and often. And if I cannot answer that question, I will ask the person I am interviewing. “Is this relevant to your complaint of harassment against the respondent? If so, how so?” Once you have their answer to this question in their statement, you are better able to determine if this is within scope or outside of scope. My best advice? Always have the person involved identify if they believe an issue is in-scope or out of scope, especially when it is unclear.

Next, the respondent will want to add their take on the situation, including their defense to the allegations, and any context they feel is relevant. They will also add all sorts of information relating to the complainant that may not be relevant. Again, I will ask the respondent how the information is relevant to the allegations or the complainant (if it is not obvious) and make sure their clarification is recorded in their statement.

What do we do when the complainant, the respondent or a witness provides information that is unrelated to the initial complaint, that may be about someone other than the respondent, and that could be a potential breach to the harassment policy, or to another policy or code of conduct not under review? Here is where we see the next major error point. It used to be that when we conducted investigations, and we found evidence that there was a breach to the harassment policy, no matter who had breached it, no matter if they were informed that they were named as a respondent, no matter if they had full disclosure of the allegations against them, or had the ability to prepare and be represented before responding to the allegations, we would bring in a conclusion of a breach. That has changed. It is not fair. It is not a process that we believe would be able to withstand the scrutiny of a third party, should the investigation be appealed. We have changed our process.

Here is what we recommend now. Should you, in the course of your investigation, run into additional, unrelated allegations, or any of the variables described above, you should pause, analyze the information, and suggest some additional administrative steps. The complainant brings up allegations that may be a breach against someone not yet named as a respondent? Perhaps you will take that part, disclose it to the party named, inform them of the allegation, provide them with time to prepare and get a rep, and interview them regarding the allegation. Perhaps you will instead spin off an entirely new investigation into those allegations. The approach will vary with the specific nature of the information and how it fits into the current investigation. The respondent brings up a potential breach on the part of the complainant? Perhaps you notify the complainant that there are allegations against them and they are considered a complainant as well as a respondent, and you disclose the allegations to them. The complainant, respondent, or witness brings up some information that would be a safety concern in the workplace? Perhaps you immediately refer this item up the chain of command for direction on how to proceed and which resources to access.

There are many elements of the modern harassment investigation that can take an investigator off-scope and compromise the entire process. We must be vigilant and responsive to the dynamics presented in each and every case. Our job is not to determine who the best person is, who the most right human is, or how many total “right” points are scored. Our job is to determine what the evidence is (related to the complaint that was filed) and associated with the relevant policy (the harassment policy). What did the respondent do to the complainant and was that a breach of the policy? It is that simple, and that hard.

In this time of COVID-19 isolation, we hope that our clients and friends across Canada are well, and safe. As my travel schedule has ground to a halt, I find myself contemplating our process and our training offerings. Should you have active cases that you would like some consultation with, I would be happy to review statements, evidence, question plans and reports to give you my advice in the area of scope creep and with any element of the investigation.

Testing Credibility

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A case involving termination following an investigation.

One of the most challenging issues in dealing with harassment and discrimination investigations can be determining the distinction between a complaint filed in good faith, yet ultimately unsupported by the evidence and a case filed in bad faith, (or maliciously), with the intent to mislead and to cause damage to a respondent and the organization. I have researched a case that presents some compelling considerations.

The case1 comes from the healthcare field in Alberta and involves the termination of an employee following an investigation into a complaint she filed. The investigation was conducted by an external investigator and the findings were that the complaints were baseless in their entirety and without merit and that the complainant deliberately exaggerated her concerns.

Acting on the investigator’s recommendation, the employer terminated the employee. They concluded that the complainant brought forward groundless allegations, and actively encouraging others to do likewise, and thereby breached the trust relationship with the employer. The union filed a grievance and an arbitration occurred.

The union contended there was no just cause for discipline with regard to the grievor’s conduct. It argues the grievor did not act in bad faith; rather, she believed she was being treated unfairly and inappropriately, and her beliefs were a matter of perception, not bad faith.

The arbitration panel (the panel) stated the decision came down to an assessment as to whether the grievor made complaints against her manager in bad faith and without reasonable grounds.

In assessing credibility, the investigator and the panel referred to the seminal case of Faryna v. Chorny2, which is now over 65 years old, but is still cited as the standard for assessing credibility. If you have time, head over to that case at page 356-57 to read the full text.

The investigator had laid out several factors that influenced her decision related to credibility and ultimately the panel accepted her assessments. They are (summarized): 1. inconsistencies of the complainant’s statements with those of other employees interviewed, 2. expansion of the complaint essence to include allegations of physical threat where none existed previously, 3. internal inconsistencies with the complainant’s information, 4. exaggerated and inflated descriptions of the respondent’s conduct, 5. failure to distinguish between hearing something or thinking something and an actual event, 6. evidence that the complainant had made comments that she hated the respondent, 7. a number of statements that were contradicted by others.

While the union argued that the grievor’s allegations were based on her honestly held perceptions, the panel disagreed and stated the following rationale: “Perception must be reasonable and must be based on the truth. To do otherwise would absolve inappropriate conduct merely because a person states they firmly believe their perceptions to be accurate. For instance, a completely innocent action by someone, wrongly perceived by another as inappropriate, could result in very serious consequences for the innocent party without recourse to the person who wrongly perceived the action as inappropriate; a sideways glance may be perceived as sexual abuse; a misheard statement could be perceived as harassment or abuse. Clearly, perception must be based on the truth and whether someone is telling the truth requires an assessment of credibility when actions, statements, and perceptions are at variance.”

In the end, the panel was satisfied the grievor went beyond making unsubstantiated or unfounded claims. Rather, they felt, the grievor exaggerated and embellished her claims to such an extent that her claims “…are without reason and reckless; we find her claims, and perceptions, lack credibility. For the following reasons, we reject her evidence when in dispute with others. First, we accept and adopt the factual findings and credibility conclusions of the Investigator. Second, we find the Grievor expanded her stories well beyond merely filling in the gaps…Lastly, the plausibility of the Grievor’s perception of events is unreasonable and unsupportable. There must be rationality on a reasonableness standard and her perception does not meet that standard.”

The panel pointed out specific concerns with the grievor’s description of a meeting, which changed quite dramatically when she was interviewed by the investigator. In the first telling, she claimed the respondent yelled at her and was looking at her with hatred in his face and she, “put her hands up.” In the investigator’s notes and then again in her report, it says she put her hands up “and said that she was only suggesting, was not disrespecting him, and was just giving her opinion because she has worked in other hospitals where she has seen proper training and what is acceptable.” 

The panel stated, “As we find above, her description of raising her hands in this context suggests it was an attempt to get a word in edge-wise because (the respondent) was speaking quite quickly and was not giving her an opportunity to speak.”

The panel stated, “Before us, she again changed her story. This time, not only was (the respondent) yelling and obviously angry, she was very concerned he was going to, or could, hit her. She clarified that she put up her hands to ward off potential blows that she believed could be coming from (the respondent).”

The panel was “…satisfied the Grievor lacks credibility and she deliberately embellished and exaggerated her allegations for the purpose of causing harm to the Manager.”

The panel turned to a question I find to be central to any attempt to conclude on a credibility assessment; the difference between an honestly held opinion and a complaint made in bad faith. They stated, “…a distinction must be drawn between a complaint that is not substantiated and one that is made in bad faith. Bad faith requires an improper motive…We specifically have found the Grievor exaggerated and embellished with the intent of causing harm to her manager. She acted in bad faith in doing so.”

The termination was upheld and the grievance was dismissed.

What do you think about this case? Have you had cases that are similar and that required you to navigate these issues? I’d love to hear your thoughts on the case!

Notes:

1. HSAA and Capital Care Group Inc., Re 2018 CarswellAlta 2575, [2019] A.W.L.D. 530, [2019] A.W.L.D. 531, 138 C.L.A.S. 88.

2. Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.)

The Winds of Change – The Sexual Harassment Cycle

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With many high profile sexual harassment cases making headlines, will we finally see lasting change?

As I watch the events unfold in the media, like a lot of you, I find myself wondering if this time, finally, things might change a little bit. I have watched with interest as members of the media and Hollywood elite speak out, and form the currents of what I hope to be social change.

I can’t help but have two thoughts: 1. Is this the current expression of a cycle that has been playing out historically for longer then we care to think? And if so, what can we learn; and 2. If making change and speaking out is such an uphill battle for this section of our society, what is it like for those without the access to support.

As I contemplate question 1, I recall my own career and journey in the area of Harassment and Discrimination investigator and trainer. I recall that when my Mother set up this consulting business, another series of public events were playing out quite publicly; the Anita Hill matter. I see that many of the issues are eerily similar. At the time I was graduating from High School and I can recall turning in an assignment on Harassment in the workplace, a topic not then readily discussed. Since that time, both my Mother and I have dedicated much of our lives to the proper investigation of Harassment cases in the workplace. We have completed more investigations than we can easily recall and have interviewed thousands of people about all manner of allegation. We have trained several cohorts of the brightest Human Resources professionals in this Country. The work has been very rewarding.

A few years ago, I was even lulled into thinking that maybe society had finally made some change; I was receiving far less sexual harassment investigation requests. I was optimistic. Now, I am not so sure. For the past few years, we have seen a mounting acceleration of high profile cases. The same themes are presenting themselves once again. I wonder, are we back to the same old territory we found ourselves in then?

Question 2 is equally tricky for me. On the one hand I believe that as discourse on the topic increases, as the headlines appear and become part of the collective, so too does the ability for those subjected to sexual harassment to report the issue, where they once may have not. I’m not sure if that is overly optimistic of me, I would like to believe that this is true, but deep down I know that there are many, have been many and will be many instances of injustice and abuse that are simply never reported or dealt with effectively. Power imbalance plays a central role. Unless and until that is effectively mitigated in the companies we work in and indeed the very fabric of our society, it is hard to see a clear path to effective change. When one party holds all the cards, what hand can a victim play?

It is with these thoughts in mind that I will continue to pursue my goal of conducting fair, balanced, unbiased workplace Harassment and Discrimination investigations and I will continue to throw myself into training our leaders to do the same. That is my hand to play and I intend to play it well. I hope to see you soon at a training event!