Originally published on May 15, 2017
In typical fashion, workplace investigations citing harassment, discrimination and bullying are often conducted by internal investigators, such as a Human Resources Manager, or by an external third party. Although there is no doubt the intention is to conduct a fair, thorough and impartial investigation, this process can be thorny when there is a labour union representing one or both parties and the potential of a grievance or arbitration looms overhead.
Indeed, the Union will represent all members involved in the complaint process and ensure they are afforded all their earned rights under the Collective Agreement and the law. While the Union is usually in a representation or support role during this process, it is not a walk in the park.
When the investigation involves a member of the bargaining unit and a member of management, the Union has the sole purpose of representing the bargaining unit member. Where it gets ‘sticky’ is when both parties are from the same bargaining unit. Whether the Union agrees or disagrees with the investigation findings, one of their members will most likely request to challenge the results through an appeal process or grievance. Regardless of what happens, one of the Union’s members will be unhappy with the Union, feeling unsupported and not represented. It can cause division. It’s equally not an easy feat for the employer since the parties in conflict are their employees and the tension negatively impacts the workplace. Workplace investigations can be intrusive and it can take a toll on the overall work environment. If the investigation is challenged, it only lends to further stress, cost and possibly a more divided workforce. And so, everyone stands to lose.
There is no perfect solution to the impact complaints and investigations have on workers, employers and the work environment. But avoiding a fight over the findings and focusing on solutions instead is perhaps a positive way forward. Unions will always stand by their principles when having to make choices. So why not have a representative of the Union be part of the investigation process and co-investigate? Seem far-fetched? Not really. If the reason for being part of a Union is to protect workers from alleged abuses, then having a decision based on established facts and reasons they can stand by, the Union cannot be strayed in the wrong direction. Although members expect the Company to not weigh in their favour, they don’t expect it from their Union. But when two members are in conflict, the Union must choose. It will be easier when the facts are agreed upon and the Union believes in the fact gathering process that was undertaken.
I have been asked numerous times why a labour union would want to participate in workplace investigations citing harassment, discrimination and bullying. Some believe it to be a conflict of interest. But one need only look at the history of the labour movement which is founded on the principles of fighting for worker rights which encompasses healthy and safe workplaces, including the psychological health of employees, and the protection from harassment and discrimination. So, it’s not a stretch to say participating in workplace harassment investigations is far from a conflict of interest. It ensures fair representation of all individuals involved and speaks to our “raison d’être”.
Indeed, having a union representative on the investigation team can provide for transparency of the process, and in most cases, this can remove the notion that the investigation was not impartial, thorough or fair since the union had a say in the process and potentially the decision of whether the evidence substantiated the allegations. While one party or the other is unlikely to agree with the outcome, the Union can stand by the process as fair and say that they represented the interests of both parties. Certainly, the Union always reserves the right to grieve excessive disciplinary measures resulting from the outcome, but participating in the investigation will alleviate in most cases the need to grieve the investigation outcome. This will leave one thing, albeit major, to focus on; the resolve and moving forward (rather than the method by which the problem will be identified).
While the Union can help make the determination of whether the claim is substantiated or not by the evidence, it cannot be part of any recommendation that leads to disciplinary actions. Nevertheless, many positive outcomes can take place with the help of the Union following an investigation. When the Union has “buy-in” of the findings, it can support workplace initiatives that cultivate a culture of respect and zero tolerance for workplace harassment.