When faced with a harassment complaint or the need to investigate misconduct, we often turn to our workplace policies to determine whether the alleged misconduct triggers an investigation.
Th applicable Policy usually sets out the obligation for employees to treat others with dignity and respect, and usually includes the steps to file a complaint if one feels they are being mistreated. However, we are seeing many employers who are unduly handcuffed by their policies because they are too rigid.
Certainty or Confusion
While policies are intended to guide a process and make things more predictable; sometimes they can have the opposite effect and add uncertainty or outright confusion to a process.
Let me give you an example, let’s say you have a policy that defines bullying as an abuse of power between manager and subordinate. This creates problems when you have a co-worker who is levelling unfair criticism of a colleague, or acting in an insolent matter towards their supervisor.
Does unfair criticism of one’s boss, or criticizing your employer’s return to work policy qualify as harassment? As always, each case will turn on its own facts. However, on the whole, you can see that problematic behaviour does not always fit within the neat definitions of a workplace policy.
Another example includes the timelines or procedure for responding to a complaint. Some employers have a policy that indicates the employer will communicate with the responding party and provide them with details of the complaint within a fixed number of days. This seems entirely appropriate from the perspective of fairness to the Respondent. However, this assumes that Human Resources receives a well written complaint that can be sent to the Respondent.
I can tell you that in 16 years of conducting workplace investigations, I can probably count on one hand the number of times I received a complaint that was nicely packaged. The vast majority of the time, you need to meet with the complainant to sort through what looks like a dog’s breakfast of grievances. In other words, you need to flesh out the complaint and put that in a form that makes sense to the Responding party.
Going back to your policy, if your policy indicates that you need to speed this up, your policy may be creating unnecessary tension and adding more chaos to a volatile situation.
Regain Control – Get your Questions Answered
We are trying to relieve the pressure and help you regain control. Please join us for our monthly webinar, Ask the Investigator, where we will review some problematic language in your workplace policies and give you tips for how to make your policies work for you. Click here to register.
Steps to Take
- Have your policies reviewed by a competent employment lawyer to identify inconsistency with statutory definitions of key terms, and whether you have an investigation procedure that is fair and efficient.
- Since the pandemic, many investigation interviews are taking place via video conference. Ensure your policy has language that has been updated to reflect this fact to bolster language around confidentiality.
- Consider joining our monthly, Ask the Investigator Webinar, to have your questions answered. Our next webinar is on September 29, 2022 at 12:30pm. Please click here to register and send us an email at firstname.lastname@example.org to submit a question prior to the event.