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Dylan Hill
March 28, 2015

The Building Blocks of an Investigation

One of the most important factors to a complete and thorough harassment investigation is the statement.  We refer to the statements as the foundation of the report because that is the first place (besides your notes) that you have recorded and presented the evidence of the case.

A properly written statement can do many things for an investigation.  They provide a framework for the case in that statements are the raw material of the case.  Statements give you a structure on which to base your questions for witnesses and they can also point out questions or gaps of information that the investigator needs to fill before the end of the interview or investigation.  Statements are what are left at the end of the interview process that you have the witness sign and take a copy of.  They are what you base your conclusions on.

You would have a difficult time indeed bringing in a conclusion to a case of harassment without the evidence presented in the statements and the final report.  There have been countless times that we have seen reports that attempt to make a conclusion based on a lack of evidence in the statements and the report.  These conclusions are unfortunately the ones that are vulnerable to challenge.

In conducting training across the Country we have learned that statement writing is an area where most harassment investigations need work. People seem to have trouble with taking information they have gathered and presenting it (in the statement and the report) in a clear and complete manner.  Let me state it again, poor statements lead to poor reports.  If the evidence is presented in a poor way in the final report that can lead to being unable to reach a conclusion based on evidence even though the investigator asked all the ‘right’ questions, and maybe even took ‘perfect notes’.  The evidence is just simply not there unless it is presented in a clear manner.

Have you had a witness tell you that they are surprised you were able to take their information and make it make sense?  Are you able to read the final report and have all your questions answered and your conclusions make sense to your boss?  Have you been asked to redo witness interviews and/or entire investigations?  Does the witness ask for excessive changes?  These are all signs that can help you asses your statement taking process.

We do not believe that there is any perfect roadmap for writing a statement but we do have some tips for statement writing:

    1. Use a standard format (the same one every time).
  1. Write the statement in first person present tense.
  2. Do not change the tense of the statement.
  3. Do not change from one person’s version of events to your own thoughts.
  4. Use paragraphs to separate thoughts and incidents.
  5. Use formal names – Never first names.
  6. The statement is one big quote – so additional quotation marks are not needed.
  7. The presentation of evidence and conclusions is for the Report – not the statement.

At Hill Advisory we follow the same pattern to format statements.  We do this because we believe that it keeps our process safe.  We spend the majority of our time writing statements and final reports and we understand the care and diligence required for the task.  We hope you have now been provided with some new thoughts in this most important of areas.

Dylan Hill
March 14, 2015

A Failure to Properly Handle an Investigation Leads to a Costly Award

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Ms Jones worked in a male dominated workplace for a City in Ontario. She was subjected to years of harassing behaviours, including sexual comments and touching and after trying to deal with the behaviour for years, filed an internal complaint. The City conducted an investigation. Ms Jones was unhappy with the response and felt that she would be subject to further harassment and retaliation. Ms Jones filed a Human Rights complaint against the harasser and some of the leadership with the City.

Ms Jones had brought her complaint to Mr Williams, who agreed that the behaviour was inappropriate and that it needed to stop. However, instead of dealing with the matter, he deferred the complaint to Mr Johnson who had direct responsibility for  the employees in question. Mr Williams did not contact a Human Rights Specialist and testified that it was his view that the matter did not meet the criteria for a complaint as set out in the City’s policy document. Rather, he believed the matter amounted to a conflict between two employees that should be resolved by the Manager.

Ms Jones took the matter to Mr Johnson as instructed but as he was on vacation, it was two weeks until she was able to talk to him. When she explained her complaint, Mr Johnson told her that he had spoken to Mr Smith about that type of behaviour in the past. Mr Johnson said that if she wanted to file a complaint, she would have to get a union representative, come back and see him. Mr Johnson told Ms Jones that her allegations, if substantiated could likely end in the termination of Mr Smith and he described Mr Smith as an old school employee who was not malicious but simply did not know any better. Ms Jones felt that Mr Johnson was trying to get her to decide not to file a complaint.

Ms Jones was not satisfied with the investigation and the communication at the end and felt that the behaviour would not stop as a result. There was a further incident of touching in the workplace and Ms Jones was forced to work the night shift in order to get away from Mr Smith.

Ms Jones asked for information relating to the investigation and discipline to Mr Smith but did not receive responses. Her Union tried to get information, unsuccessfully. Ms Jones filed a complaint with Human Rights. Her complaint relied on essentially the same information presented earlier, however there were also concerns of retaliation like manipulating the overtime schedule to deny her opportunity and excessive scrutiny of her work. Ms Jones contended that her workplace had been poisoned.

A single Arbitrator heard the facts of the complaint and analyzed the arguments and precedents set forth by both the Union and the City. The Arbitrator found that Ms Jones was subject to harassment in the workplace, that Mr Smith caused Ms Jones’s work environment to be poisoned on the basis of her sex, and that she was subject to reprisals after filing a complaint.

The Arbitrator turned to the question of the City’s liability and found that as a person in a position of authority, Mr Smith was part of the “directing mind” of the organization, such that his conduct with respect to Ms Jones effectively became that of the City. Consequently, the Arbitrator found that the City was responsible for Mr Smith’s behaviour. The Arbitrator also concluded that Mr Smith caused Ms Jones’s work environment to be poisoned, while he was a member of management, and found the City liable for the poisoned work environment.

The Arbitrator turned to the question of the Employer response and cited: “…Laskowska v. Marineland of Canada, supra [cited in Harriott v. National Money Mart, supra],…” for evaluation of the Employer response. The Arbitrator found that the Employer had sufficient policies but failed to properly educate the employees. The Arbitrator ruled that the Employer did not treat the complaint seriously and did not deal with the matter promptly and sensitively. The Arbitrator ruled that the investigation was flawed, in that the HRS did not interview witnesses to the events described in the complaint. The Arbitrator found that the City failed to take appropriate action to ensure that Ms Jones’s workplace would remain safe and that no further harassment would occur, namely, removing Mr Smith as her supervisor. The Arbitrator found both Mr Williams and Mr Johnson personally in breach of the Human Rights Code. The Arbitrator ordered general damages against the City in the amount of $25,000.00, as well as stipulating some training and eduction in the workplace.

dhill
February 15, 2015

Let’s Start Understanding A “Nexus”

Handling harassment cases in the workplace depends on a solid comprehension of key concepts.

I’ve been noticing a trend in the reporting of harassment in the workplace and in the investigation thereof. A lack of understanding the concept of a nexus. To begin, a definition: a connection or series of connections linking two or more things.

Seems simple, yes? No.

Some of the cases I have investigated recently have featured such logic as:

A) I am a woman (man/young/old/tall/short, etc).

B) Something bad happened to me.

C) Therefore the person that did the bad thing is sexist (ageist, etc).

Do we all see the flaw? It is a bit easier when boiled down to the essentials, but for a surprising number of people, the above seems quite reasonable.

However, could it be that the accused individual was just a bad person, doing bad things to lots of people, for a variety of reasons? I would submit that yes, of course it is possible. And that’s the problem with the above argument.

The problem is not just contained to the folks reporting harassment in the workplace, the difficulty with the logic persists in Human Resource professionals and in fact with some highly paid external consultants. I have had the opportunity to review work done by both groups and have found variations of this theme in the work.

Let me be as clear as I try to be when I write Final Reports on Harassment complaints in the workplace; there must be evidence to link concepts. You cannot simply skip over the logic in an attempt to prove causality, the logic is essential in the investigation and ultimately, the appropriate resolution of, all complaints in the workplace.

I have made it my mission to help Investigators think about and refine their craft, while doing the same with my skills. Let’s connect and improve the industry together!

Questions or comments? I would love to hear from you.

Dylan Hill

Vice-President

dhill@hilladvisory.com