BY NEIL HAIN
The places we work define a substantial part of our lives, and of our day-to-day wellbeing. After a year of lockdown, where a ‘workplace’ is starting to resemble a loosely held digital network, business leaders are required more than ever to consider the mental wellbeing of employees. Even where the legislative framework is well understood and reflected in a set of clear and enforceable company policies, grievances arise, and it takes a special and subtle understanding of how to navigate these challenges to ensure a rapid resolution is found.
One doesn’t need to look far in global media headlines to realize the importance of thorough and sound policies and practices around bullying and harassment in the workplace, and also of workplace investigations. Taking the example of the Scottish government, now in a state of disarray not only over allegations of harassment, but more so over the poor handling of the vital processes which should follow such allegations, it is easy to see how far reaching the effects can be for individuals, as well as organizations. Closer to home, the well-known example of Disotell v Kraft Canada Inc 2011 shows how easy it is to conduct inadequate workplace investigations, significantly exacerbating the damages, as well as the harm to victims and fellow employees. Another example is Sultz v. Attorney General et. al. a case where a supervisor’s breach of the employer’s harassment policy resulted in damages of $950,000 being awarded.
Bullying and harassment in the workplace can have immense repercussions on mental health, as well as professional progression of victims. In technical roles, the distraction posed can even lead directly to harm or injury. In BC, Bullying and Harassment is defined to include any inappropriate conduct or comment by a person towards a worker, where the person could reasonably have anticipated that this would cause the worker to be humiliated or intimidated. However, it excludes ‘reasonable action’ by the employer to manage and direct workplace activities. When exploring these cases retrospectively, with differences in individual value systems, and interpersonal relationship styles, having an expert on board, from Neil Hain Dispute Resolution, to mitigate against subjectivity, and to ensure clear interpretations of the law can assist immensely in ensuring that the investigations are thorough, and clear.
Bullying and Harassment includes a range of online and in-person mistreatment. Included in the list of identifiable acts are verbal aggression either in person or online, spreading rumours or gossip, sabotaging work, harmful or offensive initiation practices, targeted social isolation, aggressive gestures and physical assault. With workplaces moving increasingly online, there is a new need to understand when and how workplace bullying and harassment can take place.
In British Columbia, companies have a statutory obligation to protect and preserve certain rights in the workplace, and to ensure that that hazardous conditions, including maltreatment by other employees, are prevented, and remediated as effectively as possible. The Workers Compensation Act outlines a range of mandated procedures and actions to be taken by a firm such as ensuring that the right insurance policies are in place, and that compensation plans and structures are documented. It outlines the process of employees making claims, or complaints, both of which can lead to investigations, orders and fines. More fundamental than this, however, are strategies for prevention. This includes the provision of training and information around key policies which companies are required to have in place; defining bullying and harassment, and the companies intended remediation processes should a case ever arise. This is a lot to have in place, and it can be complicated, ensuring a watertight articulation of a response to the unknown. Policies need to rise with the circumstances, to meet the times, and to form that channel through which communication can flow.
Workplaces are built on trust and communication. Sound, specialist direction will position your company on a path to success; with secure and content employees able to focus on their task, safe in the knowledge that they are protected. Above all, we at Neil Hain Dispute Resolution are problem solvers, with a long track record of solving these types of workplace challenges.
Getting professional support from industry experts can help to provide the best practice bare-bones around which to draft your company specific policies and prevention strategies. One such area is in properly clarifying and conducting workplace investigations. These policies and processes not only need to be in place, but require annual review, and there are issues of ongoing monitoring and enforcement. Accurate and efficient policy implementation in any context is substantially dependent on the quality and specificity of the policy to suit the task – and this where the art really is in the detail. Organizational harmony, just as in any community relies on the strength of the institutional pillars which ensure that people feel secure and can build trust.
Getting this wrong can result in significant liability, and steep lawsuits. Sometimes, at a glance, it is easy to think that the solution is clear, and before you, forgetting that there are legal requirements for processes to be followed, failing which major damages can result. In certain cases, resolution can be reached through a process of mediation, and understanding when and where mediation can bring resolution with specialist consultation can avert the need for workplace investigations. Following a claim, throughout the process there are major decisions to be made regarding the appropriate action to take, but where policies are clear, mediation is not possible and an investigation is required, it is always best to ensure that the order of turning every stone is handled with the utmost professionalism and care to mitigate the risk of major damages resulting from failing to apply due process. In the worst cases, such as Robichaud v Canada Treasury Board) where cases involve discrimination, this becomes an issue in contravention of the Human Rights Code, or, as in the case of Disotell v Kraft Canada Inc 2011, this can lead to constructive dismissal. There is significant financial and reputational risk if employees do not adhere to these vital preventative policies and practices, and if these cannot be communicated with sufficient clarity to avoid lengthy and messy investigations and arbitrations, frequently driving up damages.
In the event of a claim, workplace investigations are required to conduct full and fair investigations into any allegations and are required to make unbiased and objective findings as to whether the facts amount to a breach of the Employer’s policy. All too many investigations take longer than they should, are subject to a lack of fair process, or fail on the grounds of ensuring a precise interpretation of the language of the policy, which leads to bias, and a lack of objectivity. These are indeed sensitive projects, there are substantial privacy considerations pertinent here; a whole field of legislation in its own right; and their successful execution relies substantially on the foundations of the organization and its legal instruments. Investigations need to be planned, timing and sequencing are of the essence, and the delicate pieces of information require the utmost care in handling. Even the art of asking the right questions and taking the right approach to speaking to employees involved can significantly influence the success and efficiency of a workplace investigation. Assessing the credibility of witnesses is likely where there lies the greatest risk of bias, and the answer to this is undoubtedly experience. Bringing an expert in workplace investigations on board is an important consideration where a company is truly aiming to uncover the truth, and to resolve the issue to the benefit of all involved, and to ensure that trust and goodwill can be maintained in the institutional memory of companies, the legacies of so many who work hard to build and grow them.