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Workplace Complaint Investigations: DOs and DON’Ts

By January 28, 2016October 21st, 2021Employment Law

You may already know that the Ontario Health and Safety Act (the “OHSA“) makes it mandatory that every Ontario workplace, including all dental offices, have policies and procedures in place regarding workplace violence and harassment [sections 32.0.2(1) and 32.0.6(1) respectively].  But did you know that these policies must contain, among other things, definitive procedures for dealing with workplace violence [section 32.0.2(2)] and harassment [section 32.0.6(2)]?  One of these procedural requirements is a system/structure for investigating complaints of violence and harassment.

For most dentist employers, the investigative process is both new and daunting.  If you are in a situation where you may have to undertake an investigation you may have questions ranging from “who should investigate” to “what questions should be asked”.  Having guidance on how to proceed with a workplace investigation may be invaluable to you – so that is what I will try to do for you here, including providing you with workplace investigation DOs and DON’Ts.

Receiving Complaints and Deciding on Need to Investigate

Complaints that may trigger the investigative process can come from any number of sources: employees, patients, suppliers, anonymous complaints, etc.  Additionally, the duty to investigate may be triggered if you, the employer, become aware of workplace violence, harassment or other serious breaches of office policies through means other than a complaint, such as social media, observing an incident or overhearing others’ comments.

When receiving a complaint you should gather as much information as possible about the incident in order to make appropriate decisions about whether to investigate and to what extent.  If possible, have the complainant put their grievance in writing or alternatively, take very good notes while the complaint is being described to you and have the complainant sign a copy of those notes.

Once the complaint is obtained, remind the complainant of their duty to keep matters confidential and advise them that their interest will be protected as much as possible (for example, any retaliatory behaviour towards the complainant on the part of the respondent will not be tolerated).

Whether the duty to investigate is triggered depends on the seriousness of the complaint and the specific facts of each case. However, I recommend you take every complaint seriously because not taking a complaint seriously may land you in hot water.

DO:

  • accept written, verbal, anonymous or any other complaints
  • take complaints seriously
  • consider whether the duty to investigate is triggered
  • remind complainant about their duty of confidentiality
  • be sensitive towards the complainant’s emotional state as it may have taken a lot of courage to come forward with the complaint

DON’T:

  • dismiss complaints off hand because you don’t think they have merit
  • question the complainant’s credibility before you’ve hand a chance to investigate
  • advise the complainant to “take it like a man” or to “play nice with others” – this may only serve to isolate them more and make them feel poorly about coming to you with their complaint

Taking Action Before the Investigation Begins

The answer to whether you should take any immediate action even before the investigation begins depends on several things:

  • what are the facts of the incident and what issues are being raised in the complaint?
  • how do the issues/facts impact your office policies and procedures?
  • are any laws being broken and should the police or other authorities be alerted?

To the extent that the complainant or others may be in danger (whether perceived or real), it may be prudent to suspend the respondent with pay during the investigation.  Beware of putting the complainant or respondents on suspension without pay because that could be construed as an imposition of the disciplinary action before a determination of guilt has been made.

Ask yourself if there are any other precautions you could / should take in order to prevent further harm or deterioration in the relationship of the complainant and the respondent.  For example, if you have multiple dental practices, will one of the parties be willing to work at the other practice for the duration of the investigation?  Can their shifts be split up in such a way as to avoid them being in the same place at the same time?

Oftentimes, complainants take stress leave either immediately before or soon after they lodge the complaint – in such a situation, you must allow the complainant time to recover and when they are ready, to participate in the investigative process.  Failure of a complainant to participate because they are not able to (physically or mentally) is not cause for termination or other sanctions, and should not result in the investigator drawing a negative inference because of the absence.

DO:

  • consider what issues / policies are in question and how they may impact the individuals or the workplace
  • ask if anyone is in danger (immediate or otherwise)

DON’T:

  • suspend staff without pay prior to investigating the complaint
  • punish or draw negative inferences from a complainant’s going on sick leave before / after lodging the complaint

Investigation Preparation

When preparing for the investigative process, there are several issues you must address:

Who Should Conduct the Investigation

Many dentists believe that an investigation conducted by the dentist themselves or the dentist in conjunction with the office manager is always the best (and it is certainly the most cost-effective).  However, depending on the facts of the complaint, the issues at hand, and the level of involvement of the dentist and the office manager, internal investigators are not always the best choice.

Possible choices of an investigator include the dentist, the office manager, other management-level employees, designated investigation team, external investigator (non-legal), external investigator (legal), etc.

Your choice should be made having consideration towards the following:

  • the real or perceived bias of the investigator(s)
  • level of involvement of the investigator(s) in the facts of the complaint
  • need for the investigator to have a specific skill (i.e. IT, accounting, legal, etc.)
  • need for the investigator to be able to claim lawyer/client privilege

It should also be noted that two investigators may be better than one.  Two investigators decreases the perception of bias while ensuring that there is always a witness during interviews and other fact-gathering processes.

How Should the Investigation be Conducted

Not all investigations should be treated/conducted in the same manner.  Investigations that involve serious and criminal or quasi-criminal allegations such as theft, fraud, serious violence, embezzlement etc. will require a harder approach, whereas allegations of harassment may call for a “softer” approach as there may be subtle relationships and other nuances between co-workers which you may have to be sensitive about.

Investigating Effectively

In order to be effective, an investigator (whether that is you or anyone else) must:

  • be objective/unbiased and non-judgmental
  • be a good listener and someone who asks poignant and open-ended questions
  • know the office policies inside and out
  • be honest and to-the-point while being sensitive to the interviewees’ emotional states resulting from the facts of the complaint

Giving Notice to Respondent/Witnesses

It is imperative that the respondent be given either a copy of the written complaint or sufficient particulars of the complaint in order to be able to respond.  Failure to do so may result in an unfair investigation and a lack of procedural fairness, which could land you in hot water!  In the case of C.R. v Schneider National Carriers, Inc., 2006 CanLII 532 (ON SC) the justice found that the complainant, C.R., having been summoned to a meeting without being provided with the particular facts of the complaint and merely asked to respond to general topics, was denied a careful and thorough investigation resulting in Schneider being found to have terminated him unjustly and having to pay termination costs of about $16,000.

Where a staff member makes a complaint but asks that they remain anonymous, you are certainly put in a tough situation.  However, your response should be that you will do your best not to reveal their identity, but you may have to divulge information that would point to the complainant, so you cannot (and should not) promise anonymity.

Maintaining Confidentiality

In order to ensure that rumours and drama do not infect your office, you must stress the importance of confidentiality to the respondent and anyone else who is given notice and summoned to an interview as a witness in the investigative process.  Due to the sensitive nature of workplace investigations, it should be stressed to the parties involved that failure to keep the matters discussed confidential may result in discipline up to and including termination.

DO:

  • consider your options about who should investigate and how many investigators should be charged with the task
  • ensure the investigator possesses all the attributes of an effective investigator
  • conduct the investigation in the most appropriate manner
  • provide the respondent with enough information to respond
  • advise parties of their obligation to maintain confidentiality

DON’T:

  • assume you, as the dentist employer, are the best person to conduct a workplace investigation
  • promise complainants or other parties anonymity

Investigation and Fact Gathering

When preparing your investigation plan, ensure that you follow all of your office policies/procedures, including conducting the investigation in a timely manner.  Doing so will go a long way to structuring your investigation fairly and eliminating the perception of bias.

When conducting interviews, make sure you speak with the appropriate individuals, including the complainant, the respondent, witnesses and anyone else who may have knowledge of the facts leading to the complaint.  Before interviewing any witnesses or other material persons, assure them that they will be protected from retaliation regarding their evidence.

Gather all relevant documentation, including e-mails, notes, written statements, accounting documents, etc. Also, be sure to take excellent notes on the steps taken during the investigation as well as the oral evidence obtained during interviews.

Parties called on to be interviewed may in some cases request representation (whether that be a support person or a lawyer).  You are by no means obligated to allow a representative, but you should be aware that disallowing representation may drive a wedge between you and the interviewee, so it may be more effective to allow the representative but ensure that they are only there for support and all answers are coming directly from the party being interviewed.

During the investigation and fact-gathering process, maintaining trust and remaining neutral is very important.  Parties will only give you information if they believe they can trust you will be impartial in making your findings.

DO:

  • investigate the complaint in a timely manner
  • conduct interviews with the complainant, respondent and any witnesses or other people who may have knowledge of the facts
  • allow parties to bring a representative to the interview, so long as they are informed of the limited role of the representative
  • remain neutral and impartial

DON’T:

  • sidestep the office policy on how investigations will be conducted – even if doing so will save you time / money
  • forget to tell interviewees that they will be protected from retaliation regarding the evidence they give

Weighing and Assessing the Evidence

Once you’ve gathered all the evidence and done your interviews, it is time to weigh the evidence and make a decision.  Reviewing the office policy on workplace violence and harassment may be helpful again at this juncture so you can decide, based on the evidence, if a violation of the policies has occurred.

Where oral / written evidence from any of the parties is contradictory, you may have to make an assessment about each person’s credibility – who was more believable and why.

When assessing the evidence, you should understand that the standard of proof you must apply is the civil one: “balance of probabilities”.  For example, ask yourself the following question after gathering the evidence: “on the balance of probabilities, did the hygienist make unsolicited and unwarranted comments to the receptionist such that those comments constituted harassment according to our office policy?”  If the answer is YES, based on the facts and statements gathered, then that is a signal that you should take some disciplinary measures towards the hygienist.

It should be noted however that in instances of very serious allegations (sexual harassment, theft, fraud, etc.), due to the implications of a negative finding after an investigation, there may be a need to be much more thorough and the standard of proof may need to be raised in order to ensure the respondent is treated fairly.

Once a decision is made, you have the hard task of deciding what, if any, disciplinary actions you will take against any of the parties.  The only advice I can give you here is that the discipline should be proportionate to the crime.  Whenever you are inclined to dole out discipline, ask yourself “can the same effect be achieved or the same message be sent to the offender or remainder of the staff by giving them a different / less harsh punishment?”  If the answer is yes, then you should reassess the punishment.

DO:

  • review the office policy manual one last time
  • weigh evidence impartially and apply the correct standard of proof
  • dole out discipline which is proportionate to the infraction

DON’T:

  • make a decision based on your feelings or what’s most economical for the practice
  • allow anything other than the facts to sway your decision

Advising the Parties of the Outcome

Once a decision has been made, it is prudent to prepare a final report to place in the staff files (even if it is a short or bullet point memo).

It is not necessary to provide the final report to the complainant or the respondent if it will only serve to antagonize the parties, but it is a good idea to advise each of the parties of the following, in writing:

  • what findings were made during the investigative process (be as specific as necessary while still maintaining confidentiality)
  • what disciplinary steps were taken, if obvious (i.e. if the respondent has been terminated)
  • what steps are being taken to remedy the situation or prevent similar occurrences, such as re-circulating the office policy manual, staff sensitivity training, etc.

Where serious disciplinary action may be taken against the respondent, consider giving him/her an opportunity to respond to the final written decision of the investigator.

DO:

  • draft a written memo about the investigation and the outcome
  • provide the parties with a written statement about the outcome of the investigation
  • provide the respondent with one last chance to respond to the findings

DON’T:

  • assume the parties will know the outcome of the investigation
  • breach confidentiality when advising parties about the outcome of the investigation

If you need legal advice, contact DMC at any time.  We are your legal dental team.

DMC