When Workplace Concerns Arise, Investigation Might Not Be Your Only Option

March 2022

It’s well known that in Ontario, employers are obligated to conduct an investigation that is appropriate in the circumstances into complaints and incidents of workplace harassment. Exactly what constitutes an investigation that is “appropriate” and which incidents are worthy of a full investigation is, admittedly, a bit uncertain. As an external investigator, I have sometimes been retained to conduct a workplace investigation and wondered why the matter was being investigated at all. While it is great to see employers taking workplace harassment seriously, it’s important to remember that investigations have their cost, and not only in the monetary sense. Workplace investigations can be emotionally taxing for those involved, can take up a great deal of time, and can end in disappointment if the result does not actually resolve the matter. So what else can employers do to manage issues in the workplace? Below are some types of concerns that can arise, and potential ways to handle them.

1)      Complaints that raise concerns which – if true – violate the employer’s policy

Let’s start with a fairly straight forward scenario:

Employee A approaches their manager and says that Employee B has been interacting with them in an aggressive manner, including yelling at them during meetings, pointing a finger in their face and pounding on the desk when they have a disagreement. The manager knows that Employee A tends to be a bit “dramatic” and suspects they are exaggerating the incidents.  

Assuming that the employer in this scenario has a fairly comprehensive workplace harassment policy that is in keeping with the requirements of the Occupational Health and Safety Act (OHSA), the alleged behaviour, if it actually occurred, could violate the policy. This means that it requires an investigation, including interviewing both the person who is raising the complaint and the person alleged to have engaged in the behaviour (the Respondent). The fact that Employee A is known to be “dramatic” is a red herring; the honesty and reliable of their statements is for the investigator to decide once the information gathering stage of the investigation is complete. The same would be true if - instead of a formal complaint - management became aware of an incident of this type of behaviour through other means (for example, by observing it directly or receiving a third-party complaint that it was happening).

2)      Complaints that raise concerns which – if true – do not rise to the level of a policy violation but do indicate possible performance concerns

Let’s next consider a scenario where less serious concerns are raised:

Employee A approaches their manager and says that they are having trouble working with Employee B. They indicate that Employee B has been dropping the ball on projects for the last two months, and when anyone points it out, they roll their eyes and refuse to engage in conversation. In addition, Employee B has withdrawn from all social interaction with colleagues.

While Employee B’s behaviour might be unwelcome to their colleagues (and the eye-rolling is a bit rude), this would not rise to the level of harassment under most policies. Having been informed that Employee B is (allegedly) not pulling their weight on projects, however, management should take steps to explore this, document the issue as necessary, and consider coaching or a performance management plan. In addition, if Employee B’s behaviour has changed drastically, it might (depending on the individual circumstances) trigger the employer’s duty to inquire whether mental health accommodations are needed.

3)      Complaints that raise concerns which – if true – do not rise to the level of a policy violation but do indicate employee conflict

Most investigators have been retained to investigate a complaint that is – at its core – a situation of employee conflict rather than harassment. Consider the following scenario:

Employee A raises concerns with their manager about interactions they have witnessed between Employee B and Employee C at the weekly team meetings. According to Employee A, Employees B and C regularly cut each other off when the other is speaking and shoot down each other’s ideas. In addition, Employee A has heard each of them gossiping about the other, saying things like, “Employee B really adds nothing to the team and should be fired,” and, “Employee C really needs to stop wasting everyone’s time with their ridiculous ideas.”

Assuming there is no egregious behaviour on the part of Employee B or C that could rise to the level of harassment, this situation could be a candidate for a conflict resolution process between the two parties, such as a mediation. While a full investigation could sort out exactly what has occurred between the parties, management would have to consider what (if anything) this would accomplish in terms of restoring their working relationship.

4)      Complaints that raise concerns which are too vague to be considered policy violations, but that are serious enough and/or numerous enough to indicate something is wrong

In some cases, an employer becomes aware that something is very wrong within a workplace or specific department but does not have enough information to conduct an investigation. Consider this example:

A director has received three anonymous complaints in the last month about one of the departments they oversee. The complaints include statements such as, “This would be a great place to work if management weren’t so intent on bullying everyone,” and, “There’s going to be no one left here if something isn’t done to improve morale.” There are four managers in the department and no specifics are given about which manager(s) are causing the issue.

While in most cases allegations of bullying would need to be investigated, in this scenario there are not enough specifics to start an investigation. In this situation, a workplace assessment could provide an overall snapshot of the department’s climate. Assuming that specific incidents of harassment came up through the assessment process, these could be investigated. However, the person conducting the assessment should not be using the process as a fishing expedition to obtain negative information about any particular manager or worker; the purpose of the assessment should be to ascertain how the department is functioning and come up with a plan to address any issues.

Conclusion

While every complaint/incident of workplace misconduct needs to be considered on its own merits, employers should keep in mind that a full investigation does not need to be launched every time a concern is identified. Investigations have their place but can be stressful for those involved and disruptive to the workplace, and accordingly should be reserved for situations where they are required by policy/statute and where they can address the problem being presented. In other cases, conflict resolution or a workplace assessment may prove to be a better option to get to the core of an issue and restore the workplace to a healthier state. 

Contact Michelle Bird Workplace Consulting at michelle@mbirdconsulting.ca to discuss how an investigation, mediation or assessment could benefit your workplace. 

Decision Tree - Is an investigation necessary to address this concern?