Employment, Labour & Equalities Law Webinar Series | Pitfalls of workplace investigations

ELISA SCALI: OK. I think we're going to get started. And before we get started with our program today, I'd like to acknowledge, because we are all based in different cities and provinces across Canada, we are located in different traditional Indigenous territories, some of which are covered by treaties.

 

I encourage us all to take a moment to reflect upon and acknowledge the land which we are living. If there are any Indigenous people attending this webinar, please feel welcome to share your home community in the Q&A so that we may also recognize you.

 

Good morning. My name is Elisa Scali. I'm a partner with Gowling WLG practicing in the Employment Labor and Equalities Group. And on behalf of the Employment Labor and Equalities Group, I'd like to welcome you to our fourth webinar of our 2023 webinar series.

 

During today's webinar, we will be discussing pitfalls to avoid in workplace investigations. To guide us through that discussion, we have with us today Melissa Roth, Hina Ghaus, and Alycia Riley. Melissa, Hina, and Alycia are all members of our Employment Labor and Equalities Group and they practice exclusively in the area of employment law, which I'm sure everybody knew.

 

But there's a few things you might not know about our distinguished speakers today. Alycia has just found a new hobby that she would like to start learning, and that's rock climbing, and that's from all her recent trips to Calgary. She now has an interest in that. So we're going to be checking in on Alycia in a couple weeks to see how that rock climbing adventure is going.

 

Hina shared with us that when she was young, she had a pet goat as a child, and we learned that that's because her son-- her brother was very picky eater, and that was the way to get him to eat bananas. He'd eat the banana and then he'd feed the goat the peel. I think I might need to get a pet goat because I have a similar issue with my son.

 

And finally, Melissa shared with us that she has been to the site of the first registered strike in Austria. That was in 1392, and that was at the salt mines in Hallstatt.

 

So, before we begin our discussion today, I'd like to just go through a few housekeeping items. The PowerPoint will be sent to everyone following the webinar today. So you will be emailed the PowerPoint. This webinar is being recorded, so you will also be able to access the recorded session following the webinar.

 

We have had previous webinars this year. As I mentioned, this is our fourth webinar in the series. And if you would like to view the previous webinars, the recorded sessions are on our web page and there will be a link in the chat to the web page for you. Finally, if you have questions, please feel free to add them to the Q&A. We are going to do our very best to get to your questions today, either throughout the presentation or at the very end of the presentation, we've reserve some time for that.

 

And now finally, I'd just like to mention that the presentation today is not intended to be as legal advice. This will be a high-level overview, so it's impossible to cover all relevant details. We recommend that for specific advice, you do consult your qualified legal counsel before making any decisions or taking any sort of action.

 

Things are always evolving, so the best course of action would be to follow reliable sources of information that are available at the time that your issue arises. So I'd like to pass it now over to Hina to get started with our presentation today.

 

HINA GHAUS: Thanks, Elisa. So I'm going to start with just going through the agenda. We have about 90 minutes together this morning, and what we're going to do is we're going to begin with an overview regarding workplace investigations.

 

So I'm going to take it over to my colleagues, we're going to talk about what the law requires, as well as common pitfalls. Then we're going to spend a large portion of today focusing on a particular fact pattern. We're going to go through a scenario that's going to illustrate some of the pitfalls that come from workplace investigations, as well as how to address them.

 

We will have time at the end for audience questions, but we do encourage you to enter questions in the chat throughout, and we'll do our best to get to them. So now I'm going to turn it over to my colleague Melissa to go through the general aspects of conducting a workplace investigation.

 

MELISSA ROTH: Thank you, Hina, and thank you, everyone, for being here today. We are going to start with the legal framework for conducting workplace investigations. What is the context in which our obligations to investigate arise? And what are some of the issues that arise within those different contexts as you can see.

 

So obviously, there is an obligation at common law, which the common law is the case law that has developed through court and tribunal decisions.

 

And that-- the common law obligation to conduct investigation-- investigations arises from different contexts such as if you want to issue discipline, we need to make sure that you've conducted a proper investigation to ensure that then that discipline will stand, whether it is to support a case of wrongful dismissal in a non-unionized context, or in unionized contexts, that particular specific discipline which can be grieved.

 

For example, there are general obligations of fairness and the opportunity to respond that also arise from the common law contexts.

 

Going back to the other slide, we also have the business law statutes that may impose an obligation to investigate, as well as workplace violence and/or workplace harassment. Statutory obligations to investigate that come from health and safety legislation of the applicable province or the federal health and safety legislation.

 

There is also an obligation to investigate within the human rights context when there are claims of discrimination or harassment that are related to co-protected grounds, and a failure to investigate within this context can be a prima facie violation of the applicable provincial or federal human rights legislation.

 

At the end of the day, there is no case law definition of what an investigation is, but the key consideration with respect to an investigation is that we have to engage in a systematic inquiry with respect to what has happened and what we want to find out as to proving or disproving the allegations that have been made.

 

Now let's move on to some more specific examples of what the law requires and where things can go wrong. So for instance, under, as I mentioned, the health and safety legislation, there are obligations in pretty much all of the provincial and federal legislative acts to investigate allegations of harassment and violence.

 

So where we see things going wrong, for instance, is when we receive a complaint, if we're not aware of what our obligations are, we may get into trouble if we don't consult the specific health and safety legislation that applies to us. There's also not just the legislation itself, but there's policy and interpretation guidelines and other resources that we may need to consult to fully understand where our obligations arise.

 

There is also some common themes where things go wrong when they-- for instance, the employee says that, I don't want to make a complaint. However, they make us aware that there's been an incident of harassment, for instance, or that they feel that there's been harassment. So we fall into trouble when we follow that employee's desire to not want to make a complaint, but we've been informed that there is a situation of harassment or that there is a complaint of harassment.

 

And then another situation where we may end up violating our statutory obligations is when, for instance, someone comes in with a complaint of harassment and we as HR professionals say, well, I know that this is not harassment, so I'm not going to investigate.

 

And this may be in the context of, for instance, performance management. Then we say, well, I know this manager is great or this manager was doing was performance managing the employee. I'm not going to investigate this. That's not right either, and we'll get into more detail in all of this later on.

 

Another important point is your contractual policy obligation to investigate even when there is no statutory requirement. So you always have to check your collective agreement and your policies. You may have actually a full process outlined in your collective agreement or in your policies with respect to workplace investigations. You may even have certain timelines that you need to follow, which, if you then don't follow, you're in violation of your contractual obligations.

 

The next slide has some additional things where-- what the law requires and things can go wrong, and this is part of what I mentioned briefly with respect to your common law obligations. So you want to conduct an investigation to support discipline for misconduct, whether it is something like breach of confidentiality or theft or drinking in the workplace or bringing visitors to secure area of the workplace.

 

If you don't investigate, then you're going to have an inability to establish that the misconduct actually happened. And so when you rely on that to take negative steps, such as issuing discipline in the unionized context, which can be [INAUDIBLE] or ultimately getting to the most severe form of discipline, which is termination, if we cannot establish the misconduct actually happened, then we're going to have a hard time proving our case.

 

Another common things where things go wrong when it comes to supporting discipline for misconduct is that we may come to a conclusion and implement discipline without even speaking to the employee. So once again, we need to give the parties-- and that brings me to the next point, which is procedural fairness and natural justice.

 

We need to give the parties the opportunity to respond. The respondent needs to have the ability to provide their version of events, and both the complainant, obviously, needs to have the opportunity to respond as well if new items come up during the investigation.

 

Now opportunity to respond is essential, but when it comes to the opportunity to respond in the context of conducting an investigation, we have to be very aware of guarding against what's known as investigation creep-- or scope creep.

 

So if there are new allegations and the allegations are serious enough, you may need to start a separate investigation, but you don't want your investigation to now turn into a much broader thing than what we started with or a situation where we're now investigating the complainant in the same investigation that we're investigating the respond. And once again, we'll talk more about that in the coming slides.

 

That's all in terms of a very high level of what the law requires and where things can go wrong. Now Alycia is going to give you some more specific examples where things often go wrong as we talk to our clients and we see the things that happen in practice.

 

ALYCIA RILEY: Thanks, Melissa, and good morning, everyone. Thanks for joining us this morning. So as Melissa mentioned, one of the things that commonly goes wrong is there's a lack of formal complaint. Again, it doesn't need to be formal. Particularly under occupational health and safety legislation, any knowledge that is available to a supervisor or a manager, that is imputed to the employer.

 

So one of the important things to keep in mind is making sure that managers are properly trained to recognize, OK, when is it that I need to be actioning this? Perhaps reporting upwards to their supervisor or to HR or whatever your applicable policy says to do in the circumstances.

 

A second thing where things often go wrong is the failure to act promptly. Now that doesn't mean that you need to drop everything immediately, but certainly when you receive the complaint, you should be letting the complainant know that you've received it, you've acknowledged it, you will be looking into it.

 

And of course, once you've done that, keeping in mind that you may have specific timelines under your collective agreement or under your policy, but most importantly, just from a practical sense, memories do fade over time.

 

So you're going to get the best evidence if you act promptly, and we do and generally discourage, don't wait to build a case against a respondent. If you're starting to get one complaint or two complaint, don't wait for two more to come in. As soon as they come in, you should be investigating them right away. And of course, make sure that you're following your own policies as you go through that process.

 

Now with proportionality-- so an employer's investigation doesn't have to be perfect. We're all human beings, so the standard is not perfection, it's reasonableness. But we have to keep in mind that a more serious accusation or something that has greater sensitivity in the nature of the complaint is going to warrant a more comprehensive investigation.

 

And so we have to be mindful of that. For example, an allegation of theft, fraud, sexual assault is, of course not the same as an allegation of bullying. And that leads me into the next point, which is, sometimes the right person for the job is unfortunately not selected.

 

So one of the instances of that could be if there's a certain degree of complexity, if there's an element to the investigation that perhaps the person who would normally handle it internally just doesn't have the experience or competency to do, that's when you need to be looking at, OK, do we need to hire someone externally?

 

Now that doesn't necessarily mean that you should spend $50,000 on the investigation, but we do want to make sure that the person who is going to be doing the investigation is both competent, experienced, and also, we need to avoid the perception of any real or perceived bias.

 

And so managers are often rarely the person-- rarely the best person for the job because they will have a direct working relationship with the complainant and/or respondent. However, they may be an important witness in the investigation because they could provide an oversight into workflows and observations, et cetera.

 

So in most workplaces, if we're looking at specifically workplace harassment, it's usually going to be HR. But again, if the allegations are really complex, that's when we need to look at hiring externally. Thanks, Hina.

 

So the other areas where things can often go wrong is a lack of documentation. So even simple complaints, ones that perhaps HR determines do not warrant a formal investigation, should still be documented. Again, so often what happens when things go wrong is all of the things that happen during an employee's employment get unfortunately brought up at the end of that employment relationship.

 

And so if you have things documented, it's very easy to go back and cross-reference and see what was done at that time. And so you have a defense if those allegations are made against you as the employer. If you don't have those records, then you're in a bit of a bind if the person who originally looked into it is no longer with the organization.

 

Now confidentiality versus anonymity. So confidentiality is essential to any workplace investigation. Maintaining confidentiality in an investigation does not necessarily mean that your report will need to remove all identifiers. The report can be viewed by those on a strictly need-to-know basis in a sealed envelope.

 

We sometimes ask-- employees will say, well, I would like to remain anonymous. Now, it is possible, for example, in the instance of filing a complaint, it is possible to file an anonymous complaint, but you should advise the complainant, whomever they may be, that it is going to-- excuse me. It's going to hamper your ability to properly investigate if you are not aware of the identity of the complainant.

 

And so in many cases, anonymity is just not a reasonable expectation, especially if you do need to put certain allegations to the respondent. It will be hard for you to meet your duty of giving them a fair opportunity to respond if they don't actually know who is making the complaints. Thanks, Hina.

 

So after you've conducted your witness interviews, we also get a lot of clients who say, well, I don't know who to believe. I can't believe one person over the other. And it's always important to remember, the standard is a balance of probability. So which way do the scales tip? We're not looking for proof beyond a reasonable doubt, which is the criminal law standard for conviction on an offense.

 

So when we're looking at the conclusion that you need to come to, there's no such thing as a tie. If you feel like the allegations or what you've obtained in evidence is not tipping the scales, then the allegation is not substantiated and that's your conclusion.

 

Now when we have a failure to report back to the complainant and/or respondent, depending on, of course, if we're looking at the statutory obligation that is a breach of the statute, you have an obligation to report back, but also just from a practical perspective, we need to close the loop once an investigation has been done.

 

So please don't leave people in suspense. Once you've made your conclusion, you write a reporting letter back to the complainant and one to the respondent, you advise, here were the allegations, this was the finding, and if you have found that the infraction occurred, you can also consider advising of what the remedial actions will be.

 

And then lastly, we also see instances where an employer has failed to remind both employees, your witnesses, your complainant, your respondent against reprisal. And so you must, as an employer, be vigilant and continue to guard against the risk of reprisal.

 

So if the investigation does not substantiate harassment by a manager but the manager later reprises against the employee, that becomes a serious problem that you need to investigate separate and apart from anything else that you'd investigated before that arose from the complaint.

 

And of course, you'll always want to refer back to your policies, any collective agreement or contracts, and your training to make sure that everybody understands their obligations for that generally in addition to when they participate in the investigation itself. So now I'm going to pass it off to Hina who's going to discuss with you what the proper steps of an investigation are.

 

HINA GHAUS: OK. So on this slide, we've summarized at a very high level the proper steps of an investigation. So before we get into the fact scenario that we're going to spend the majority of today on, I wanted to address some preliminary points about what you need to ensure that you have covered off when you're conducting a workplace investigation.

 

So you normally want to begin with gathering your resources. As Melissa and Alycia said, these include your policies, any programs. If you're in a unionized environment, the collective agreement. Then you want to develop an investigation plan. So this includes advising of the start of the investigation, gathering and preserving all the relevant evidence, and developing effective questions for the parties that you're going to be interviewing.

 

Now when developing an investigation plan, you want to keep in mind that a hallmark of a good investigation is being timely. So you want to make sure that the investigation is undertaken promptly, and this usually means within 90 days. Now this is unless there's some sort of a compelling reason why you're going to need more than 90 days, and this could be the case.

 

This could be in more complex investigations where perhaps you have a number of witnesses, or this could be the case where a lot of key witnesses are not available or they're not cooperating.

 

So another important part of a good investigation is having a good investigator. So a good investigator needs to be objective. This means they normally do not work very closely with the respondent or the complainant. A good investigator also should be qualified to conduct the type of investigation that is occurring in the workplace.

 

So throughout the investigation, you want to make sure that you keep the important things confidential, and this is unless the information has to be disclosed to protect the safety of the employees to actually conduct the investigation, or sometimes as required by law.

 

You also want to make sure that your investigation is comprehensive and thorough. This means if, during the interviews, a party raises new items, that you address that appropriately. Throughout the investigation, you want to ensure that everything is also properly documented. This includes when you're assessing the evidence and assessing witness credibility.

 

And then like Alycia mentioned, you want to make an actual finding. You have to come up with a conclusion, and this includes drafting an effective report at the end. Now depending on the mandate of the investigator, you may or may not need to outline remedial action, but you do need to come up with a conclusion in the report. So with that very high-level framework, I think we're ready to move on to the fact scenario.

 

So what I'm going to do here is there's about three slides of the fact scenario, and I'm going to read them, and then I'm going to ask Melissa and Elisa directed questions about the specific fact scenario.

 

So this fact scenario occurs at Seasons Salon and Spa, which is a premiere salon in Ottawa. Since its establishment, it has opened several locations throughout Ottawa. Diego is a hair stylist who has worked at Seasons for over 10 years. Diego worked alongside Sandra who is the general manager of three different Seasons locations.

 

So back when Diego and Sandra were the only employees of Seasons, he used to babysit Sandra's children. And so Sandra jokingly calls him Uncle Diego.

 

Maddie is a part-time hairstylist who is still a probationary employee. She very recently graduated from her hairstyling program. So both Diego and Maddie work at the same Seasons location. Maddie has noticed that whenever a client she sees then sees or talks with Diego, they no longer want to book appointments with Maddie. When she asks them why, they do not give her a straight answer. So Maddie suspects this is because Diego is saying negative things about Maddie to the clients.

 

Maddie asks another coworker, Akeelah, to listen in on Diego's conversations. Akeelah says that she is her Diego say "Maddie," "green," and "young" in the same sentence. So Maddie confronts Diego and accuses him of badmouthing her to clients When Diego denies this allegation, Maddie throws a hairbrush on the floor and says, "Wipe your mouth, Diego-- there are still some lies around your lips." This is heard by Sandra. Diego complains to Sandra who immediately puts Maddie on a paid suspension.

 

Now I'm going to go into some questions while you digest this fact scenario. So, Alycia, is this an appropriate situation for Sandra, the general manager, to do the investigation?

 

ALYCIA RILEY: So definitely not in this scenario. So we know that Sandra is friends with Diego. She's too close to him. So right off the bat, any investigation report, we would likely immediately question her ability to remain impartial. She's also the general manager, she's not HR.

 

So while she may be very-- she may be excellent at her job managing hair salons, I'm not confident that she has the necessary qualification to conduct a workplace investigation. So again, it's not a knock against her. It's just the nature of the role is different, it's not what she does.

 

So in this case-- and she's actually also a witness because she's heard this comment from Maddie. So in this case, what Sandra should be doing is she should be either referring this to HR, or if we're dealing with the case of a smaller employer, they may not have a specific HR department, but that may be the situation where you then want to retain an HR consultant.

 

So, again, we're not looking to spend $50,000 on this investigation, but we do need to make sure that we're going to have somebody impartial who's going to look at this.

 

HINA GHAUS: Yeah, OK.

 

MELISSA ROTH: And If I may add, I think there's a question from the audience that is related to this, and the question is, there are instances where we may have to interview witnesses who are former colleagues, how do we define proper objectivity in such cases? It is really dependent on the circumstances.

 

So we-- obviously a human resources person who's conducting an investigation is going to be interviewing people that they have relationships with. But this is the kind of thing, a situation where you have someone who is very close with the complainant or the respondent. And so close that they had a personal relationship that they're almost family. That's when you know.

 

If it smells bad, if you're asking yourself, should I do this? You probably shouldn't. If you're a witness, if you're very close to them, you probably shouldn't do it. There's no magic answer to that question, unfortunately.

 

HINA GHAUS: OK. So then maybe, Melissa, you can answer this next question. So is this an appropriate situation to put Maddie on a paid suspension?

 

MELISSA ROTH: It's not looking good for Sandra to put Maddie on a paid suspension right now. We do not think that this necessarily warrants a paid suspension, first of all. We have one incident where she got upset, obviously in front of the clients, that needs to be addressed. Sandra witnessed it.

 

But a paid suspension in this case and in many circumstances would seem punitive. We do not want to make-- we do not want to come to a conclusion before we conducted the investigation. The general manager, Sandra, has witnessed the event, she needs to address it with Maddie. In doing so, she would probably learn more.

 

There may be other more appropriate measures, such as giving them separate shifts or a temporary assignment to a different location if we think that the situation is so acrimonious that we need to separate them, but we can't jump to a paid suspension immediately because in some circumstances, we may be falling into a punitive situation as opposed to something that seems more administrative.

 

HINA GHAUS: OK. So Alycia, in this scenario, who are the appropriate parties that you think need to be interviewed? And should the investigator actually speak with the customers?

 

ALYCIA RILEY: So when we're looking at the nature of the complaint, we know that Maddie has this concern against Diego badmouthing her to clients. However, the final bullet point is that Diego is the one who complains to Sandra. So using that to frame our analysis, the appropriate witnesses are, then, Diego, Maddie, and Sandra.

 

There may have been others who were present at the time, internal witnesses, maybe Akeelah was working that day, potentially a booking person or receptionist who was nearby and also heard this comment. That may be the case, but you'll want to keep in mind, customers were present.

 

From a public relations perspective, I think that this is not one of these scenarios where you would want to be speaking to your clients or your patients. It's not necessary in this scenario because we have internal witnesses. And so contacting your clients outside to say, hey, did you overhear this comment? It could put bad taste in their mouth.

 

So I would say certainly don't speak with your clients unless you have to. And of course, the more people you add to this, the larger the investigation becomes. And while we want to be thorough, you also don't want to spend 30, 40 hours of your time investigating a relatively simple complaint. I'm sure everybody has enough on their plate as it is.

 

So of course, if you have concerns about the veracity of certain things that your witnesses are saying, maybe, but I don't think it's necessary in this case.

 

HINA GHAUS: OK. So I'm going to add another layer to this case. So Melissa, if during the investigation, the coworker Akeelah relays what she heard about Diego and Diego denies it, what is the next step in the investigation? I mean, what if the investigator is just not able to verify exactly what happened?

 

MELISSA ROTH: Thank you, Hina, that's a good question, and that's a very common situation. Whenever we have situations like this, we tend to see outright denials, and then we have witnesses who have heard things, may not have heard it properly.

 

At the end of the day-- and then also, in situations, for instance, of allegations of harassment or sexual harassment, it's even worse. We have a complete he said, she said situation, but that doesn't mean we cannot come to a conclusion. The whole point of an investigation is that we need to gather all of our resources, all of our evidence, all of our witness statements, and actively listen when we're interviewing our witnesses.

 

We need to hear the demeanor in Diego, we need to understand if Diego is denying everything. Some people-- the behavior during an investigation can be grounds for either more severe discipline. In cases where people are disingenuous or they are confrontational, they deny everything, even the things that they should have admitted, those things are considered aggravating factors.

 

Then conduct during an investigation can also lead to mitigating factors. If Diego had said yes, I did say-- and let's say we put Akeelah's statement to him and we say, we don't know exactly what you said, but we heard something about "Maddie," "green," and "young," and Diego comes up with an acknowledgment, I said that, but it was in the context of this or I said this particular sentence.

 

So we're always going to have to assess things based on the information that we gather, and sometimes we have a gut feeling. And that gut feeling, as long as it's based on objective things that we can point to after as to why we believe this over that, is what going to tilt the scales. We're humans. Just like any other investigator, we're going to hear all the evidence and sometimes things are going to smell bad and sometimes things are going to sound believable. That's what we have to go on.

 

The standard is reasonableness. We don't need a perfect investigation, we don't need to uncover every stone. We don't need to prove things, as Alycia said, beyond a reasonable doubt. It's a balance of probabilities. It's a tilt the scales or not.

 

So if we have Akeelah hearing that and we have Diego in complete denial and the context of the whole situation leads us to believe Akeelah over Diego, then that's what we believe. It's about having-- and that's why you want your notes to be very thorough and then any assumptions that you make during the investigation, you want to include them in the report. And obviously in this case, you may be doing assessments of credibility and reliability, which are also going to include in your report.

 

HINA GHAUS: OK. So Alycia, let's say that during this workplace investigation, Maddie wants her boyfriend present as a support person. So should this be allowed? And what types of questions should we be asking when assessing whether to allow this?

 

ALYCIA RILEY: So, I mean, first of all, you should always go back to your policy. If your policy says anything about support persons, make sure that you've reviewed that in advance. You, of course, don't want to be found to be offside your own policy, just got a good look if we had to go before an adjudicator.

 

Now I'm generally fine with people who bring support persons. I'm very understanding of the fact that an investigation is not an easy thing, even for a complainant. It can be very upsetting. And so I think that emotional supports are fine.

 

But the key thing to remember is that their job is to support and not to interrupt. And I would be very vigilant in making sure that anybody who attends with a complainant or a respondent is not trying to coach them in any way. They're not interjecting or answering questions on behalf of the person that they're attending with.

 

I think that generally, if they start doing that, you have to remind them, of course, this is not your role. Your role is a support person. And then from there, if they continue to interject, you can either ask them to leave or you can just continue the interview. It's pretty rare that that happens, but certainly something that you'd want to be vigilant about.

 

Now even before you get to that stage, you can perhaps ask the person, is there a reason why you would like to have an emotional support person? Because it could just be a matter of having a conversation between HR and the complainant making them feel a little bit more comfortable with the process, and then perhaps you've gained a rapport with them and they feel like they don't need one anymore.

 

So there may be an option, too, where you can avoid that situation altogether by just having that conversation with the person who's asking for it.

 

HINA GHAUS: OK. So Alycia, when we were talking about whether to speak with customers, you said consider the public relations aspect of this. Now if we, as a business, know the customer, know the customer allegedly said this, then-- if we know the customer, then can we speak to the customer as part of the investigation?

 

ALYCIA RILEY: So sorry. So if the customer said-- sorry, if we know the customer?

 

HINA GHAUS: Yeah. So if the customer is known to Seasons and the comments made by Diego allegedly, then can we talk to the customer? You're not so worried about the PR aspect.

 

ALYCIA RILEY: So I think-- of course, it's always something that you want to weigh the pros and cons of. I think what would be-- I would be curious to know is, first of all, we always want to exhaust the internal witnesses first. So again, keeping in mind that we're not going to reach out to anybody externally unless we have to.

 

So I would want to consider, why is it that we're reaching out to this particular client? What type of evidence do we think that they're going to have? If we've had two or three people who say the same thing and the client we anticipate is going to stay the same thing as well, then probably that's just-- I don't think that's a necessary step that you would have to take unless you've got particular concerns about credibility.

 

But certainly, if they're a very, very close client and you feel that your relationship with them is is not going to be tarnished by the fact that you're reaching out to them and you feel like this evidence is necessary to come to a conclusion, then yes, you can reach out to them. There's no hard and fast rule against not reaching out to them.

 

HINA GHAUS: OK.

 

MELISSA ROTH: Hina?

 

HINA GHAUS: Yes?

 

MELISSA ROTH: There's a question from the audience that is related to the prior question you asked Alycia, and it's about, what about a union representative accompanying someone in an interview? And the answer is, absolutely. That's probably what you have to do based on your collective agreement. Anything that could lead to discipline usually requires the presence of the union.

 

And certainly an investigation can lead to discipline. It is quite common for the union to be present during the entire investigation for complainant, respondent, and witnesses. Having said that, that doesn't mean that the union can talk. That doesn't mean that the union rep can interrupt or disturb. Just like a lawyer couldn't do it, just like my mom couldn't do it, anybody that is attending as a support person is a support person.

 

Very importantly, especially in all contexts, but certainly in the unionized context as well, if the union, because this is very common for the union, the union rep, you're interviewing me, you're asking me a tricky question, I'm stumbling on the answer, and the union rep says, I think it's a great time to do a break, or can I have a minute to consult with my brother or sister outside?

 

Well, guess what? You're going to include that in your notes of that interview, because then when we're in arbitration and when they want to say like, oh no, she was very honest during this investigation, this should be a mitigating factor, we can say, well no, actually, yeah, she was honest, but only after we put it to her three times, and one of the times before the third time when she finally admitted it, the union got her outside and talked to her then she came back and all of a sudden admitted it.

 

So all of those things need to make it to your notes because they need to be part of what you have recorded because all of those are going to be relevant to the ultimate decision.

 

HINA GHAUS: OK. So in the same vein of having multiple people during the interviews, let's say this is a smaller workplace and Sandra is conducting-- is the investigator. So what if Sandra wants another coworker from Seasons who is not a witness to any of these complaints to be present to take notes? Is that an acceptable person to join?

 

MELISSA ROTH: So I-- we-- under most circumstances-- now, let's ignore the fact that Sandra-- I presume in this case, we're ignoring the fact that Sandra is a witness. Let's just say the investigator. The investigator, whoever the appropriate investigator is, wants to have another person present. And in most circumstances, we recommend it.

 

While having two people may, in some circumstances, have a chilling effect because it may be intimidating, you have to pick that person appropriately. First of all, it can't be a coworker of the people that you're interviewing. So normally we see a HR and manager. As long as the manager is not a witness, as long as the manager is not involved directly in the issues, then we see HR and manager.

 

And we actually do recommend, when we train people on how to conduct internal investigations, we do recommend that two people depressant to the extent possible because one of them is asking the questions, is doing active listening, is looking at body language. A lot can be learned from body language. Whereas the other one is occupied and taking notes.

 

If I have my head down the whole time taking notes, I'm not going to see that, when I'm interviewing Alycia, she blushed when I asked her about throwing the brush on the floor or something. I'm not going to see that the other person is crossing their arms and/or gripping the table. You need to actually pay attention to a lot of things when you're doing an interview, so it is great to have a second person to take notes.

 

Now if we're dealing, let's say, with an allegation of sexual harassment and-- or systemic discrimination against women or against someone from a different ethnicity, and the person that we're going to bring as our note-taker is someone who would be intimidating to the complainant, for instance, we may want to reconsider that person.

 

We need to take a trauma-informed approach to our investigations, so we need to be sensitive to those little things. But otherwise, if we're not dealing with those things, then having somebody else there to take notes is a fantastic idea.

 

HINA GHAUS: OK, so let's continue on with more details to this fact scenario. So since Diego has worked at Seasons for 10 years, he has a lot of clients, many of whom follow him on his Instagram. So on Instagram, Diego posts pictures of his cats, his cooking creations, and client hairstyles with the client's permission.

 

Maddie also has an Instagram account that she uses to advertise her own separate business as a nail artist. Maddie also occasionally rents a male station at Seasons to use for her nail clients. Maddie and Diego follow each other on Instagram.

 

So three days after Diego complained about Maddie, Maddie is scrolling through Instagram and she sees that Diego is sharing several posts that state, "Gen Z does not work hard and is difficult to work with." So Maddie knows that she's the only Gen Z worker at their Seasons location, so she knows that Diego must be referring to her.

 

That same evening, Diego comments on a picture that Maddie posted of a manicure and Diego writes, "This is trash. I've seen better." Maddie screenshots this post and sends it to Sandra, who is the general manager at the Seasons location.

 

So in this fact scenario that I've just discussed, is this one that's enough to require Seasons to commence a formal workplace investigation? So Alycia, you can take this one.

 

ALYCIA RILEY: So, I mean, the nature of the conduct, we know that this is happening outside of the workplace, outside working hours, but this is conduct that may be sufficiently related to the workplace. It's further complicated by the fact that this is a comment about Maddie's personal business, but she also runs a station at the salon.

 

So I would say that there may be a sufficient nexus to investigate, but first, let's speak to Maddie. Let's see whether this is a single-time complaint, how is she feeling about it? Is this happening more frequently? Is there more are there more images or comments that we need to see? Why does Maddy believe that Diego's comments about Gen Z are directed specifically at her or affecting her ability to get clients, et cetera?

 

So I would want to touch base with Maddie first, and then from there, of course, taking notes of all of this, we want to make sure that we've got a proper record established. And from there, I'd say certainly want to do a little bit of fact-finding on a preliminary basis, and then if there's enough there, then yes, I agree, there should be a formal investigation done.

 

HINA GHAUS: OK. So Melissa, what if the investigator starts a formal investigation into online harassment, but the investigator doesn't request the screenshots of all the posts?

 

MELISSA ROTH: Well, then we have a problem because the investigator is not gathering all of the necessary evidence that we need to have to conduct a proper investigation. Especially when it comes to online issues, we need to preserve the evidence because all of that evidence tends to disappear as soon as we know that we're being investigated or that there's an issue with what we've said.

 

So whether the screenshots are provided by somebody else or whether the investigator is able to get them themselves, we most certainly have to preserve all of that evidence. And we also have to make sure that the investigator in this case would review the social media policy, for instance, or other related policies that may determine what is permissible or what is not.

 

And of course, we have to always think about the nexus to the workplace and whether the conduct is sufficiently related to the workplace to warrant the workplace investigation.

 

HINA GHAUS: OK, so I have a question here from the audience. It says, if you have to interview alone, is it permissible to record the conversation if you've made the person being interviewed aware and you obtain their permission to record?

 

ALYCIA RILEY: Yeah, so there's no there's no prohibition against audio or video recordings, particularly if you do have consent. What I would say is, you'll want to, again, just weigh the pros and cons of that. So the pros of it is, yes, you have a verbatim record of every single question asked and every single answer said, which is, of course, a good thing.

 

However, you may find that it creates a bit of a chilling effect in your investigation, particularly when dealing with the respondents.

 

So for example, people may be a little bit more guarded in what they say if they know they're being recorded as opposed to if you build up your rapport with whomever you're interviewing and you get them going on a roll and they just start telling you everything, which may be extremely helpful to your investigation. They may be less inclined to do that if they know that you're recording it. So that would be one thing to keep in mind.

 

And the other thing I would also consider is, are you going to have time to go back-- I don't know how long your interview is going to be, but for a lot of people, taking four or five hours from each interview, not necessarily something that you have time for. So that may be something that could be potentially used against you as well. So not a prohibition, but again, something you'll want to weigh based on the circumstances.

 

ELISA SCALI: I do have one follow-up question for you, Alycia, on that. A lot of these investigations, I think, are now being conducted virtually.

 

ALYCIA RILEY: Yeah.

 

ELISA SCALI: Using Zoom as opposed to in-person. Would you say that it's the same in terms of recording? If you're sitting with the person and they see a device that's recording as opposed to if it's virtual and you have a little recording icon in the upper left-hand corner, do you feel like there might be a difference in terms of how that might impact the witness?

 

ALYCIA RILEY: So-- I mean, certainly again, no prohibition against recording on Zoom either, so the same considerations would apply. That's a good point, too, Elisa because I have to admit, we're recording this session right now. Am I particularly focused on that little blinking red dot that I see on my screen? No.

 

But I do think that somebody who is feeling like they're being interviewed and, for lack of a better word, they may feel like they're being-- like an Inquisition is happening, it's a little bit more intimidating. So they may be focused on that a bit more.

 

But you're right. In the digital age, it might be easier to get them going on a roll via Zoom because you can at least still have that ability to see them face-to-face, but I would say that there's still going to be a potential drawback.

 

MELISSA ROTH: It is a valid point, though, and one of the things that we normally train on is if you're going to record it in an in-person setting, don't put the camera right in front of them with the microphone right there, right? Yeah. So there's something to be said about the physical hardware versus the recording on Zoom. It may be a little better on Zoom and you may have more candidness on Zoom if you're recording.

 

ALYCIA RILEY: Yeah. Now having said that, I know that, particularly during the COVID era, it was very common that we had to do investigations via Zoom just because it wasn't safe for everybody to meet in-person.

 

Having said that, I think now that-- we're seeing a return to work, generally there aren't very many restrictions in place anymore, your default form of investigation should always be a face-to-face interview.

 

Now the reason we say that-- Melissa mentioned earlier, there's going to be a lot of potential cues from the body language. And so if you're not meeting in-person, that's a lot harder to assess.

 

The other thing you might want to be mindful of is, if you're can only see me from essentially the shoulders up, you don't necessarily know if I've got notes in front of me, if I've got my cell phone nearby, maybe I'm texting somebody as I'm talking to you, or perhaps like typing something on my computer and you can't see my hands.

 

So if you are going to conduct investigation via Zoom, make sure that you're satisfied yourself nobody else is in the room with them, there's nothing in front of them so that they're not using anything to be coached or to relay their evidence potentially to somebody else.

 

HINA GHAUS: OK, yeah, that makes sense. So what about if it's the person you're interviewing who wants to record the interview? How do you handle that situation.

 

MELISSA ROTH: The answer is no. And hopefully you'll have it in your policies or something, and if you don't, still resist it. I mean, there's a whole-- we talk a lot about confidentiality.

 

And so if you have a party to the investigation that records the investigation and comes out of it keeping it, where is your confidentiality? Nothing's stopping them from them sitting in a lunchroom or having some drinks with coworkers and playing the entire thing. So the answer is no. And hopefully they address it in a policy.

 

ALYCIA RILEY: Yeah. If I'm not mistaken, actually, there was a decision about this, a rather large employer. So the name of the case is it escapes me.

 

But what the employer was able to do is they found out that one of the investigation participants did record the interview without anybody's knowledge, and they were actually able to rely upon that as termination for cause, notwithstanding the actual findings of the investigation, but it was because they had a policy in place and specifically told everybody, you are not to record this, we must respect confidentiality. And it was that willful violation of that policy that actually substantiated the termination for cause.

 

ELISA SCALI: And what if you suspect someone's doing it covertly? Would you ask someone-- if you're interviewing someone, would you say to them, you're not permitted to have your phone in the room? Or how would you deal with that?

 

MELISSA ROTH: Yeah, or show me your phone I have-- I have had that situation arise where somebody was recording and they just put their phone on record, and you're more than-- if you have those suspicions, like this is one of those things that, probably this day and age, should become part of our housekeeping items during an investigation, to warn people that they're not to do this.

 

But if you get suspicions or anything like that, you should ask them to show you their phone. You're not asking them to give you their phone, you should ask them to show you their phone and close all open tabs or something along those lines. Yeah, we don't want this to be recorded by the parties that we're interviewing.

 

HINA GHAUS: OK. So heading back to this fact scenario. So it ends with Maddie just sending a screenshot to Sandra. So what are we do in cases where the individual has informed the employer, but does not actually make a complaint?

 

MELISSA ROTH: Any particular person you want to answer that?

 

HINA GHAUS: Alycia?

 

ALYCIA RILEY: Sorry, Hina. So yeah, again, we fall into that, oh, I'm letting you know, but I don't want to make a formal complaint. Well, sorry, like that's not how it works. And particularly-- I know managers and supervisors, they need to be exceptionally mindful of this, I know that sometimes managers and supervisors feel uncomfortable. They are like, oh, I don't want to feel like I'm being too bossy or whatever the case may be. I understand that.

 

However, they have obligations, too. And their obligation in that capacity is to represent the employer and to report things upwards. So, if Maddie says she doesn't want to make a formal complaint, the reality is is that she's now alerted the manager, and therefore, the company of an issue.

 

And so if we've triggered our obligation to investigate, then notwithstanding the fact that she may not want to put anything to writing, I would still have that conversation with her. And record her complaint, record what she's telling you. And then ask her to look it over. Is this accurate? Yes it is, OK. And then from there, I would say use that as the basis for your investigation.

 

HINA GHAUS: OK.

 

ELISA SCALI: There's a follow-up-- sorry, there might be a follow-up question. What if they say that they're making an informal complaint? Is there any kind of distinction that's going to change the response in terms of whether you're going to proceed with an investigation?

 

ALYCIA RILEY: So-- I mean, you'll want to take a look at your policy because sometimes the informal complaint can actually be defined in the policy. And so it's-- we sometimes see the case where an employer will have-- the informal route is where we try to mediate between the parties to see if we can resolve the dispute. That way, failing which, we go to the formal complaint stage in which case then we're doing a formal investigation.

 

So certainly something to consider. Having said that, I would still document it. Even if we end up resolving it informally, I want the manager or whomever taking notes saying, this was brought to my concern, we resolved it this way, and then you saw that separately, but I would still want it documented so that down the road, if that employee says, well, I and nothing was done about it, you've still got something to back up what you did in reply.

 

HINA GHAUS: OK. So I'm going to continue with this fact scenario, but if there's any more questions, again, we encourage you to enter them into the chat. So let's now assume that instead of a general manager, Sandra is the HR manager and that there are no conflicts that prevent her from conducting a workplace investigation. She's no longer a witness.

 

So Sandra receives Maddie's Instagram screenshots while Sandra is still investigating the complaint that Diego made against Maddie. So Sandra decides that Maddie's concerns are not related to the workplace and tells Maddie to figure it out with Diego. So Maddie pushes back and tells Sandra she does want this investigated and she wants to make a complaint about Diego.

 

Sandra explains that Maddie is the respondent to another investigation, so Sandra can't turn that investigation of the allegations against Maddie into an investigation against Diego. So Maddie questions Sandra and Sandra decides that Maddie is offside, converts her paid suspension into an unpaid suspension, and issues discipline to Maddie for retaliating against Diego.

 

So Maddie now wants to complain about Sandra, but doesn't know where to go from here. Maddie sends an email to the CEO of Seasons. So in this situation, Melissa, is it appropriate for Sandra to refuse to investigate Maddie's concerns in the circumstances?

 

MELISSA ROTH: Most likely not. I think Sandra may be misunderstanding what investigation creep is. So while we don't want to turn an investigation into Diego into an investigation into Maddie or vice versa, and while we don't want the investigation to become a whole new thing, if we are dealing with a serious enough allegation-- so go back to the common pitfalls, failure to follow up.

 

If, in the context of the investigation, we learn of new things that would deserve an investigation-- and in this case, in our opinion, probably based on the fact-- on the facts, what's happening on Instagram, there's enough of a nexus to the workplace to require a workplace investigation.

 

What Sandra needs to do is Sandra needs to start a separate investigation. And for those of you in the audience, I'm sure you're quite familiar with situations where A complaints about B, in the context of investigating that complaint, B complains about A right? And so what might end up happening is that you're running two parallel investigations. It may not even be appropriate.

 

In some cases, you may need to wait and finish one before starting the other, but in many other cases, you may need to run two parallel investigations, but you need to keep them separate. You have a different investigation plan. You have different issues to address. You have different complainants and respondents. You may have different witnesses. You will have to write a different report. You will have to come to a conclusion in each investigation.

 

So you really-- Maddie needs to actually take-- sorry, Sandra needs to take Maddie's allegations seriously and do something about it, because as you can see from this scenario, which has turned into a big disaster, that's the outcome of refusing to investigate the complaints.

 

HINA GHAUS: Mm-hmm. OK, so Alycia, now that Sandra is the subject of the complaint, who should be conducting this potentially parallel investigation?

 

ALYCIA RILEY: So in this case, I mean, Sandra's the HR manager and I will assume that there's probably nobody above her with the training to conduct a workplace investigation. So now we're looking at the point where we do need to go external. Certainly, I don't think the CEO of Seasons is going to be the person who's best for the job.

 

So if there's a different HR manager available who we think could perhaps conduct a proper investigation, they're properly trained, they're not going to have any perceived or real bias, sure, we can look into that, but failing that, I think you're looking at going external. So perhaps an HR consultant that you can hire to conduct this investigation as a retainer.

 

HINA GHAUS: OK. So let's say, going back to the concept of parallel investigations, so does this new complaint that is made by Maddie against Sandra actually prohibits Sandra from completing her earlier investigation, which was about Diego's complaint against Maddie?

 

MELISSA ROTH: Well, as long as we remain in a situation where Sandra is still impartial with respect to the other investigation, Sandra could complete the investigation. If we need an investigator to start over, there may be some excessive delay.

 

But if we're now dealing with a Sandra who is so protective of Diego-- I think in this scenario, we have removed the personal relationship, she was no longer a GM, she was an HR consultant with no actual bias, she wasn't a witness either. So that should be OK for Sandra to continue that investigation unless Sandra's refusal is based on her-- she has a relationship with Diego and that's why she's protecting Diego so much. Now we need some intervention.

 

Like the CEO is going to have to start asking some questions here. And the CEO is going to have to probably consult legal to figure out this intricate web to see if Sandra remains an impartial person to come to finish the other investigation.

 

HINA GHAUS: OK. So speaking of the CEO, Alycia, let's say the CEO is not involved in the day-to-day of the three Seasons locations. So what he does is he forwards Maddie's complaint about Sandra to the coworker Akeelah. But he also copies Sandra on that email. The CEO asks Akeelah to arrange for an external investigator. Is this an appropriate next step?

 

ALYCIA RILEY: Oh no. So definitely not. The CEO should not be emailing another coworker in the same workplace. The other consideration is, too, if Sandra is in a position within the organizational hierarchy that's above Akeelah, I mean, that in and of itself is going to be a bad look and it will really taint Sandra's perception of the investigation as well. That it's already, right from the outset, and not being handled appropriately.

 

So certainly not something that you want to do. But also, we don't know, Akeelah may be involved. We know Akeelah is in the same workplace. They could be a witness. So it's not appropriate to be then emailing them to say, hey, can you arrange an investigation?

 

We also know that there's an obligation not to discuss any of the matters with colleagues during-- before, during, or after the investigation. So we've also got a potential breach of confidentiality here.

 

And then copying Sandra creates a potential apprehension of bias as well because if Sandra is in a position that's senior to Akeelah, it almost creates that feeling of like, oh, am I supposed to run it by somebody for approval? What happens if I don't pick someone they like? So again, not something that-- you shouldn't be copying a respondent on emails about retaining an investigator.

 

And so, the CEO's actions should be information sharing once we've retained an external investigator, and then the investigator will have to assess, OK, which of these scenarios may have an impact on the integrity of the investigation? And then, of course, once you're actually doing the investigation, everybody does need to be reminded repeatedly of their duty to uphold confidentiality.

 

HINA GHAUS: OK. So the hierarchy in the workplace is an interesting aspect. So I have a question here from the audience. What if you receive an anonymous written complaint against the senior executive? Does that hold grounds to start an investigation?

 

ALYCIA RILEY: So it would depend on the nature of the complaint, but I'd say once you're dealing with a senior executive, yes, you're looking at external. Melissa, did you have anything you wanted to add?

 

MELISSA ROTH: No. Exactly what I thought.

 

ALYCIA RILEY: Yeah. Now I did want to address, there was one question from the audience about if a respondent is citing regularly a credible third-party source and stating the data source misled them, does the employer have a duty to connect with the third party? So that's a bit too specific for-- I don't know if we're going to be able to provide you with an adequate answer to that question because it's quite specific.

 

However, what I would say is, if they're giving you-- if they're telling you, I'm acting like this because of X, do we generally have a duty to investigate X? I would say yes. If there's a reasonable basis to follow up further on that, then I would do so. But this third-party source item, I'm not particularly sure about. That would be very specific. We'd need more information on that.

 

MELISSA ROTH: And in the spirit of the questions that are posted and addressing them, there's a question that I'm not sure we understand. It's, does workplace extend to the interview stage or does the latter belong to a different area? Maybe this person could ask the question again. I mean, if we're talking about conducting a workplace investigation, your behavior during the workplace investigation is certainly the workplace.

 

So if that's the question, then yes, the answer is yes, it's related to the workplace, it will probably happen in the workplace. But if the question was after something different, please let us know.

 

HINA GHAUS: OK--

 

ELISA SCALI: I have--

 

HINA GHAUS: Yep.

 

ELISA SCALI: Sorry, I was going to take a little different take on that question. What if something occurs during-- when we're talking about workplace, at the interview stage in the hiring process? And something during that interview-- this might be completely off, but that's the way I thought I could read that question, too. If you're in that interview and something occurs in that interview and the person wants to make a complaint, would that be still considered--

 

MELISSA ROTH: Absolutely. You'd better address that because in the last four months, I've had two human rights complaints related to hiring, and specifically to allegations that relate to allegedly what was said during the interview. And so you should most certainly deal with things like that.

 

ALYCIA RILEY: I have an active litigation matter on that as well.

 

MELISSA ROTH: Yeah.

 

HINA GHAUS: OK. So let's say during in our fact scenario, during the workplace investigation into the complaint against Maddie, Maddie just feels overwhelming stress and she brings in a medical note saying she's taking a leave of absence for four weeks. So what happens to the status of both investigations? And Alycia, you can take this one.

 

ALYCIA RILEY: Thanks, Hina. So the investigation still needs to be completed and it needs to be completed in a timely manner. So we all want to keep the investigation process going as efficiently as possible.

 

Now going on a leave of absence does not necessarily mean that the investigation can't proceed, but as the investigator, you're going to have to proceed with a lot of care and caution. So we know that in the course of these two investigations, Maddie needs to be interviewed. She's involved in both of them.

 

So we can first ask if she's able to participate while she's off on a leave of absence. If not, do we have a medical note explaining that she's got these restrictions? Or if she says, yes, I can participate, we want to make sure that her participation is also consistent with whatever the medical note says about her restrictions.

 

With her being off on leave, the other thing I would say is, perhaps giving her alternatives to an in-person, I know that I said earlier, generally in-person is my go-to and I maintain that, but when we've got somebody who's off on leave, I mean, a Zoom interview may be preferable.

 

And so providing those options to Maddie in these circumstances may provide her with that comfort that she actually does feel comfortable in participating in as opposed to not giving those options and then she just says, no, I can't, I'm not going to do it. So not your ideal form of interview, but at least you're getting the interview.

 

Now it's going to be a pitfall if you complete the investigation without interviewing Maddie. There's that competing duty to conduct a timely investigation, though, that shouldn't prevent you from conducting a thorough investigation.

 

So insofar as Maddie's complaint goes, I would probably let Maddie know, listen, you don't have to be interviewed right now if your restrictions say that you can't, but recognize-- a little bit of cover your butt here, recognize that this is going to delay the investigation or I'm not able to make a finding without your evidence. I would just put that to them so that they're aware of the fact that you're being sensitive to their needs, but at the same time, it's going to hinder your ability to do what you were asked to do.

 

HINA GHAUS: OK. And there's a question here, but we might have to break it down into parts. So the question is, how would the leave of absence affect termination decisions or payouts? So Melissa, do you want to maybe parse that question a little bit?

 

MELISSA ROTH: Absolutely. So I think the situation-- the leave of absence-- so for instance, if Maddie allows us to interview her while she's on the leave and it turns out that our conclusion is that Maddie engage in some kind of wrongdoing and that she deserves corrective action-- I'm not sure that in this case, we would be terminating Maddie for, but let's say it's a situation where there is a requirement to terminate.

 

If you can prove that your termination is completely unrelated to the fact that she's going to leave, then you can proceed-- it's the same advice that we would give in any other situation where you have to terminate somebody that is on leave.

 

In terms of payout, it's likely not going to change anything. Now under the ESA, if we have someone with an irregular workweek, we have to go back to the 12 weeks prior to termination, but if this person is a salaried person and let's say they are on sick leave and they're not continuing with their salary, that's not going to change your payout. You're still going to have to pay them the-- so their termination entitlements come under reasonable notice or whatever this is.

 

So once again, I think that overall, the answer is a leave in circumstances where there's a sick leave and we need to take action where the person is on the leave, we better be able to demonstrate that the action that we're taking is completely unrelated to the leave, but that there are valid business reasons for the decisions that we're undertaking, whether it's in the context of our of an investigation or not.

 

But you have to also be very aware that the moment that you terminate someone on leave, you are likely to get a human rights claim, and you're going to have to defend that and you're going to have to deal with it.

 

HINA GHAUS: OK, so there's a lot of good questions coming in here now. So there's, what if someone brings forward an allegation and then they resign? What happens there, Alycia?

 

ALYCIA RILEY: I would still investigate for a few reasons. So number one, I mean, from a practical perspective, if they're complaining against somebody, that person who makes a complaint might have resigned, but that doesn't mean that the alleged offender or the respondent isn't creating a toxic workplace for everybody else. So certainly I'd want to investigate.

 

But the other thing is, if they've resigned, we may be looking at a constructive dismissal situation, in which case, we want to make sure we have our ducks in a row so that if there's ever a claim filed against the company, we can say, well, this is when it was brought to our attention, these are the steps that we took, this was the investigation's findings.

 

And then there you go, you've got a much better defense. If you ever have to have a statement of defense in the future, at least that way, you've got it covered you can show that you were diligent in taking steps. So absolutely, even if they resigned, I would look into it.

 

HINA GHAUS: OK. So Melissa, going back to Maddie being on a stress leave, there's a question that says, can you interview the person on a leave if it's for the stress of the situation or do you need clearance first to even do the interview?

 

MELISSA ROTH: Well, that's going to be-- as Alycia mentioned, it's going to be very dependent on the circumstances. If the person has provided with-- has provided you with a note that includes restrictions and limitations, and the restrictions and limitations say she's experiencing a severe amount of stress, she can't have any contact with the workplace, and it's been caused by this situation that she has been roped into, you're probably not going to be able to insist on an interview at that time.

 

You don't want to be in a situation where there's now an allegation of harassment against employer, you're harassing me while I'm on leave while I told you that I'm stressed about it. Having said that, sometimes we all know that the medical note may just be a blanket note that says, Maddie needs to be off for four weeks. And so, as Alycia mentioned, we're going to inquire.

 

We have to try to do our best to continue with the investigation, but at the same time, we don't want to put ourselves in a situation of liability. So that's going to be a very delicate situation, very dependent on all of the circumstances.

 

In some cases, you may be able to say, well, if you don't participate in the investigation-- and let's say they leave in our scenario was first for four weeks, and then let's say she continues to extend that leave and it's now for four months, well, we're not going to hold everything in the workplace just because you're now all for four months and your doctor actually gives you a note based on what you tell them.

 

So you may be in a situation where you say, we're going to come to a conclusion without your input. And to the extent that there is anything that you have to add when you return to work, then we will reconsider.

 

Again, you may have to get creative, but what you don't want is to be in a situation where they're claiming harassment against you because let's say you're-- they've told you, this is causing me a lot of stress, I'm on a stress leave, you have medical, and then you're emailing them three times a day and calling them five times a week asking them to participate in the investigation.

 

HINA GHAUS: OK, so in our scenario, we had a situation where the investigator was potentially friends with the complainant. There's a question here that flips that. So what if the investigator has a bias against an investigation participant? Are they still unfit to investigate due to that bias? So Alycia, you want to take that one?

 

ALYCIA RILEY: So I would want to-- I would want to look into that. What is it about the investigator-- like them not liking or not getting along? Is there a history of that? Or is it just like in this particular investigation, I don't like this respondent because I don't believe them to be credible or I don't think their evidence is reliable, whatever the case may be?

 

So in that case, if it's something that's related to the investigation, you're probably OK. However, if this is like there's an ongoing history of these two people not getting along, I'd say you have the same issue. There's a concern about a perceived or a real bias, and particularly with the respondent, they're going to know that as well.

 

And so if there's a finding against them, all they have to say is, well, that person doesn't like me. And then now you've got your entire investigation called into question. So certainly, if there is a risk of that, I'd say the investigator should be recusing themselves and you should be giving it off to somebody else.

 

HINA GHAUS: OK, so we've talked about how it's important to follow up when you're having interviews, any new issues that come up. So what if during an investigation, one of the witnesses mentions a potential complainant, but when you talk to the potential complainant, they deny it? Melissa, is this a situation where the investigator would need to dig deeper?

 

MELISSA ROTH: Well, it really depends on the context. Like if-- so you said a witness? So if a witness to the investigation says, I know this has happened to Todd and I want you to talk to Todd because this is proof that Melissa engages in harassment because she has done that to Todd as well and I've heard about it, you go talk to Todd. If Todd says, no, I've never had any issues--

 

You don't want to go in a witch hunt and you don't want to go in a wild goose chase. So really, it will be very dependent on the circumstances, but if the person is denying involvement, it's going to be very difficult for you to investigate it. You may be able to put that to the respondent.

 

We've heard that, we understand that you have engaged in this kind of behavior against other people. But you may not want to mention Todd because if Todd is telling you, no, this doesn't happen, you may want to leave it open. It is a very specific situation, I think.

 

ELISA SCALI: Can I ask a follow-up to that? What if one of the witnesses during the investigation regarding complainant-- a complainant mentions similar behavior by another individual?

 

And so basically raises another issue about someone completely separate, but they raise it because it's similar to what they're being questioned about, but it's a different complainant. Then what do you do? Because it's in the context of that first investigation, and now they're saying, well, by the way, so-and-so has subjected me to similar behavior as well.

 

MELISSA ROTH: So if I'm understanding your question correctly, then in that case, our witness would become a complainant to a separate investigation, and that person would become a respondent to that separate investigation.

 

ELISA SCALI: Right. So as soon as they mention it, then that gives rise to a duty to investigate. You can't just ignore it.

 

MELISSA ROTH: If it's serious enough, yeah, absolutely.

 

ELISA SCALI: Great.

 

MELISSA ROTH: OK, so Alycia, if an investigation is conducted and sexual harassment is substantiated, what are appropriate corrective actions in that circumstance?

 

ALYCIA RILEY: So it-- sorry, it's such a lawyer answer, but I gotta say, it depends. Because there are different degrees, for lack of a better phrase, of sexual harassment. If we're dealing with something that's quite egregious, I think you're looking at a termination. If it's something where it's like, oh, I just feel uncomfortable around that person, then certainly I would think there's different ways that you may be able to address that.

 

So if it's-- perhaps a training issue, sensitivity training, training on actual harassment in the workplace certainly is something that I would recommend once substantiated. If it's something where we think that the relationship is going to be rather acrimonious going forward, we don't want to take any steps that appear to be perceived as penalizing the complainant. We don't want to look like we're penalizing anybody for bringing a complaint forward.

 

But maybe having a conversation with them about, OK, well, should we look at maybe moving you elsewhere or perhaps moving the respondent elsewhere? Should we look at staggering shifts? So it would really depend on the circumstances, but certainly in those types of cases, I think it's pretty rare that you go back to, OK, and now everything is fine. So I think there's going to need to be some type of shift for sure.

 

HINA GHAUS: OK. So we were talking about when you have an investigation plan, you want to start the investigation, let the complainant and respondent know. So there's a question here that maybe Melissa can take. Is it appropriate to conduct an extended investigation without informing one or more of the respondents if you believe that the knowledge of the investigation would impact the potential findings? The respondent might change their behaviors temporarily during the investigation.

 

MELISSA ROTH: So if the question is, can we conduct an investigation into a respondent without telling them that we're investigating them? The answer is no. Because that goes to the principle of procedural fairness, natural justice, having the opportunity to respond to the allegations against you.

 

Now what may be appropriate in some circumstances is that you do not give notice to the respondent that the interview that they're going into is to deal with an allegation of x, y, and z. In some cases, you will be giving notice to them that something has arised and that you are going to investigate and you may be giving them a letter in advance.

 

In some other cases, you may need to call them into a meeting without any warning because you don't want them concocting an answer or situation or coming up with an explanation. But no, under no-- I hate using absolutes in law, but I don't think there's any circumstance, unless any of the other lawyers here disagree with me, where you would investigate a respondent without telling them that you're investigating.

 

ALYCIA RILEY: Yeah, I certainly-- I think if there is a concern about potential fraud, for example, and your concern is that, well, if I tell them right away, the first thing they're going to do is go into our system and delete all these invoices, I understand that. But certainly you can't conduct an entire investigation without them knowing it.

 

So perhaps at that preliminary evidentiary stage where you're collecting that stuff, you may have not alerted them to it yet, but you certainly can't come to your conclusion without letting them know, hey, these are the allegations and what do you have to say about them?

 

ELISA SCALI: What about if it's-- they're saying it's an extended investigation where you start the investigation, you interview the complainant, but you want to interview a few witnesses before you actually notify the respondent of the complaint? What do you think about that approach?

 

ALYCIA RILEY: I would want to look into why do we think that's necessary? Are we concerned about them sharing evidence? Are we concerned about intimidation? Because that may factor into whatever preliminary steps we take at the outset.

 

For example, if we're concerned about the respondent being intimidating, OK, well maybe they're going on an administrative leave instead of not telling them, perhaps that's the better way to tackle it. So I think it would depend on the circumstances, but certainly I'd want to ask those preliminary questions first. Melissa, did you have anything to add to that or Hina?

 

MELISSA ROTH: And you may be in a situation where you make things worse because the witnesses end up telling the respondent and now you're dealing with additional allegations from the respondent, maybe constructive dismissal claims. There's also-- there's a case where significant damages were awarded for failure-- essentially for conducting an investigation without telling the respondent that the investigation was being conducted. So I think you have to be very careful.

 

HINA GHAUS: So we are just about at our time, but I want to see if I can get another question or two in here. So Melissa, if the investigator feels that the complainant and the witnesses have talked together and they're providing basically the same version of the facts, does this affect the credibility of the statements?

 

MELISSA ROTH: You would make note of that certainly. When you assess credibility and reliability, you would make note of the fact that their stories are too similar. Like no one ever-- the reality is, no one ever remembers things the same way. So when a story is too scripted, it sounds suspicious, for sure, include that in your credibility and reliability assessment.

 

HINA GHAUS: OK, I'm going to do one last question here. So Alycia, when you have an uncooperative witness, is there anything you can really do beyond just reminding them of their obligations to encourage their cooperation?

 

ALYCIA RILEY: So certainly, I would remind the witness that they have a duty to cooperate in the investigation. So certainly start with that. But I'd also look to your policies, because generally, when I'm helping clients with their policies, one of the things I'll put in is if you're not cooperative, if you breach confidentiality, we have the right to discipline you for that.

 

And certainly, that's something that I would consider acting on if they're being particularly uncooperative or hostile, certainly I would look into that as an option. Not saying that would necessarily be the thing I immediately jump to, but definitely an option that I would want to have available to me.

 

HINA GHAUS: OK. And another question here, which I think is a really great one. Melissa, if an investigator perceives a witness's English to be fluent but then they come back and they say they didn't understand what was happening during the interview, is the investigation compromised?

 

MELISSA ROTH: Well, I think that's one of those things where you're going to make an assessment of credibility and reliability and you're going to say, well, this witness has never had any issues speaking to us. You may want to follow up and ask them, well, what is it that you didn't understand? Is there-- would you like another opportunity to provide a response?

 

Like you may do some following up on that, but at the end of the day, if this is BS, then you're going to note that in your investigation report and in your reliability and credibility assessment because it's not as if we are all of a sudden going to disregard that interview. You need to assess it in the circumstances.

 

ALYCIA RILEY: Yeah. And so sometimes what you could also do is at the outset of the interview, explain-- set the groundwork. Let them know, if you've not met them before, hi, my name is Alycia Riley, we're going to be conducting an interview today into the allegations of X. Now I will do my best to speak as clearly as possible, but if I'm speaking to you quickly, please let me know.

 

If there's a question you don't understand and you need me to repeat it, please let me know. And so that way, you've got that framework right there of like, I put you on notice that if you're not understanding something, then you've got to let me know. And so if they go through an entire interview with no allegation of, I'm sorry, I'm not understanding your question, well then, that's one of the other things that factors into your assessment. You've already asked them that. So I would consider that as well.

 

ELISA SCALI: Would you also consider at the outset if you don't know the witness when you advise them of the interview to say that the interview is going to be conducted in English and if they need any interpreter?

 

MELISSA ROTH: Yep.

 

ALYCIA RILEY: Yep.

 

ELISA SCALI: That that would be available-- made available?

 

MELISSA ROTH: Absolutely.

 

ALYCIA RILEY: Yep, for sure.

 

HINA GHAUS: OK, well, I think we're just about at our time. And I think we've gotten to most of the questions, too, so I think we're OK there.

 

MELISSA ROTH: A lot of the questions were answered in writing as well. So for the attendees that want to see those answers, they cannot see them. We are not answering them privately, so they're in the Q&A in the Answers section.

 

ELISA SCALI: OK. Well, thank you very much, Hina, Alycia, and Melissa, that was extremely informative. We hope you found this to be a useful session. If you are interested in learning more about workplace investigations and on how to conduct workplace investigations, Alycia and Melissa do conduct a full-day workshop on workplace investigations and provide training during those workshops.

 

And in our survey, which you will see on the screen a QR code, if you point your camera to the QR code, that will link you to our survey. We would love to have your feedback on the webinar, but in that survey as well, there is a question, if you would be interested in participating in one of those workplace investigation training sessions, you can indicate your interest on the survey as well if that's of interest to you.

 

And again, your feedback is really important to us. So we would appreciate your feedback on this webinar and your ideas for any future webinars. And we do have another webinar coming up. That one is not going to be until September 28. We're taking a little bit of break over the holidays because I'm sure a lot of people will be away enjoying the summer.

 

The next webinar's on September 28. It's entitled, Beyond Reasonable Notice when we will be discussing potential damages that may arise in the context of a wrongful dismissal, claim beyond damages for pay in lieu of reasonable notice. So things like bad faith, punitive aggravated damages. So we hope you can join us for our next webinar. And I wish everyone a wonderful summer. See you in September.

 

ALYCIA RILEY: Thanks, everyone, have a great day.

 

MELISSA ROTH: Thank you.

 

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