A Commentary by Wendy Ferguson – BHRLR, CPHR
If you happened to have read my article in March, you are already aware that on June 1, 2018 Alberta’s Occupational Health and Safety (OHS) Act was updated to align Alberta with other provinces in terms of protecting our workforce. In fact, it would be hard to not have some knowledge of these changes given the Government of Alberta’s recent media blitz on the topic. Before I go any further, I wanted to cite this directly from the OHS Act to ensure you are all aware the new legislation:
Investigating and reporting incidents
- investigate any incident of harassment or violence
- take action to address the incident
- prevent it from happening again
- prepare an investigation report outlining the circumstances of the incident and the corrective action
Employers must retain the investigation report for at least 2 years after the incident, keep it readily available and provide a copy to Alberta OHS on request.
An Alberta OHS officer may also conduct an investigation of the incident and may conduct interviews and gather evidence to determine what happened. Work site parties are required to cooperate with the officer. (www.alberta.ca/ohs-act-regulation-code)
As a side note, any contravention to the Act will be taken very seriously with penalties for up to $10,000 per day!
What I really want to address is that workplace investigations are mandatory in cases of alleged harassment and workplace violence. Employers often fail to properly investigate misconduct in their organizations, and sometimes avoid investigations altogether. This just won’t be an option going forward. I want to share with our readers some mistakes that become detrimental to the investigation process and how to navigate your way through your new obligations as an employer.
The Top 7 Workplace Investigation Mistakes:
- Failing to conduct a prompt investigation
- Not selecting appropriate investigatorswho are able to conduct an impartial investigation
- Failing to follow the organization’s own documented policies and procedures
- Ignoring confidentiality and privacy
- Failing to properly document investigation findings
- Retaliatingagainst the complainant or others
- Failing to advise of the outcome and take corrective steps
What Should Trigger You to Conduct an Investigation?
Any alleged misconduct and this includes complaints from employees, customers or members of the public.
How to Choose an Investigator
Sometimes internal HR departments are not aware of the fundamentals surrounding investigations, however they can and should be equipped to conduct at least some internal investigations.
That said, when either: you do not have the internal resources, your internal HR department is not equipped, or they cannot remain truly neutral in the investigation – it’s time to contact an outside expert. Depending on the degree of sensitivity of the allegations, it may be a better idea to have an impartial external investigator conduct or assist in the investigation. External investigators should be used when there’s any indication of: conflict of interest; disputes involve very senior individuals within the organization; allegations are particularly serious; or allegations relate to serious criminal conduct. In these cases, you will find the services of a qualified investigator can be invaluable.
Extra Tips for Employers
- Be sure your policies and procedures are up to date.
- No matter what you decide in terms of how you will go about conducting your investigation (internal or external) you MUST maintain confidentiality. Do not ever reveal the identities of accusers or specific allegations unless you are required to do so during the process (for instance with investigator or legal advisor).
- Do not put yourself in a position where you are conducting an investigation that cannot be performed impartially. Know when you’re out of your depth. Obtain professional advice or assistance conducting the investigation if necessary.
- Report alleged criminal conduct to the police.
- Depending on the nature of the allegations, consider offering the complainant to take a paid leave of absence pending the outcome of the investigation.
- Remember, the alleged offender also has rights, and should be presumed innocent until proven guilty.
- Retaliation cannot be tolerated in your organization.
Your decision to respond to an employee complaint with a fair, thorough, and well-conducted workplace investigation is critical in ensuring that any decision made is well-reasoned and justifiable. The investigation process and selection of the investigator play critical roles in protecting you as an employer from liability in subsequent legal or human rights proceedings. If you need support with a workplace investigation, feel free to contact Wendy Ferguson at Stick People Solutions Inc.
Wendy Ferguson is a Human Resources Professional and owner of Stick People Solutions, providing simple, flexible and effective solutions for complex people issues.