Originally published on April 25, 2017
As workplace investigators, we are asked to investigate a wide range of behaviours, actions or concerns in the workplace. Depending on how the investigation will be used and reviewed, our practices must follow the expectations of investigative standard practice, corporate policy, regulatory requirements and legal or labour relations rules.
But what happens when an investigation is not so clear-cut and falls into similar but separate categories?
I work closely with my colleagues in the Human Resources departments in cases where, during an ongoing investigation related to bullying and/or harassment, a concern of workplace violence is also identified. The number of these types of “dual focus” investigations is increasing.
Regularly, involved parties are describing comments or conduct that would be considered as workplace violence in both federal and provincial Occupational Health and Safety regulations. It is also important to recognize that individuals with long histories of bullying and harassing behaviour have perpetrated some of the worst incidents of workplace violence in Canada. Concerned complainants often point this out to me when they express concerns for their personal safety. What should the investigator do when a party says, “I need you to tell me that he is not going to come back with a gun and shoot me”? Whether driven by media reports or the increasing concern of workers, this is not an unexpected comment in my investigative practice.
Further compounding the challenge for investigators is the fact that what workers may consider as “violent” varies from person to person. In British Columbia, for example, the WorkSafeBC definition of violence (non-worker) and workplace conduct (worker-on-worker) includes the following excerpt: “any threatening statement or behaviour which gives a worker reasonable cause to believe that he or she is at risk of injury”. I have had numerous WorkSafeBC officials advise me that if a worker feels threatened, then the employer must investigate. I would suggest that the threshold for investigation is quite low, and at minimum requires some form of action as outlined in OHS regulations.
In a situation where the incident appears to be isolated and the risk of future violence is low, the standard OHS investigation is, in most circumstances, sufficient. Representatives of the OHS committee normally conduct this type of investigation, and would not involve a workplace investigator.
However, in situations where an employee notifies the employer of an ongoing concern, it is important to consider a more specialized approach. So how should a workplace investigator proceed?
I would advise that it is critical for the investigator to understand the unique aspects and requirements of what I have termed a “protective” investigation, as compared to a harassment investigation, or an OHS incident investigation.
For the purpose of this article, I will focus on the unique aspects of the harassment and protective investigations.
In the majority of harassment investigations, the investigator is scrutinizing specific allegations and incidents to make a finding that something occurred or not, based on a preponderance of the evidence. In most circumstances, the risk of physical harm is low and the employer can manage the risk of increased emotional harm to the complainant and respondent through a variety of strategies.
Prior to considering the need for a protective investigation, the investigator needs to ensure that a confirmation bias (e.g. that the violence risk is likely low and that standard approach is adequate) does not influence their approach.
It is often difficult for individuals, including investigators, to even consider that the violence risk is a real concern. The investigator must objectively consider the need for a protective investigation. The scope of the analysis and time involved will vary from case to case. But I would submit that it’s better to err on the side of caution and gather preliminary information to support determining the need for a fuller investigation.
The primary goal of the protective investigation is to gather information in support of a “threat assessment” and the implementation of the subsequent “risk mitigation strategies”. A protective investigation is forward-looking, to determine if violence is present and may escalate. Threat assessment and management is not identified as a core skill by CAWI. I wear the dual hats of a workplace investigator and a “Certified Threat Manager”.
However, the workplace investigator plays a key role in early identification, information or evidence-gathering, and liaison between employers and threat assessment and management professionals. In cases where the investigation does not identify an ongoing or serious risk of violence, the investigator has provided the employer with needed risk mitigation support and guidance.
In protective investigations, I work with a different evidentiary standard than that of most harassment investigations. I am often presented with and gather less-tangible evidence. Often the concerns of the complainant may be based on veiled threats or innuendo, and the resulting effect on the individual, such as fear or anxiety, is a consideration. I deliberate whether comments of concern are early indicators of violent intent. I am also interested in collateral information such as personal or professional stressors, previous violent history, access to weapons, and violent related comments or “leakage” associated with the individual of concern.
As an investigator, I must consider if sharing information with the individual of concern increases the risk of subsequent violence and the risk of increasing the fear and anxiety of the complainant. Unlike within a harassment investigation, I am not obligated to present information or evidence to the respondent if I feel it increases the risk of workplace violence or other concerning behaviours. Now, I recognize that this limits the ability to use standard human resource or labour relation avenues to address behavior. Limiting the amount of information provided to subjects of concern (including the identity of parties and witnesses) is based on an investigative risk assessment and on the need to “do no harm” as the result of investigative actions.
My fundamental goal is to ensure that all parties are safe and mitigate the risk of future violence.
Often, following the completion of a protective investigation, there is limited or no indication that a risk of violence exists. In the event that the behaviour or comments of concern constitute a breach of bullying and harassment policy or legislation, a separate investigation could commence. If handled appropriately and sensitively, the subsequent investigation should not be negatively affected by the now-closed protective investigation.
Should new information come to light or there is a change in violence-related behaviour, the protective investigation can be re-opened and new information considered in the ongoing threat assessment.
The concerns related to workplace violence are increasing in workplaces across Canada. OHS regulators are increasing pressure on employers to have the ability to investigate, assess and manage the risk of violence from both internal and external sources. Where once workplace violence programs focused on late night convenience store and taxi robberies, now the fear of a disgruntled co-worker carrying out a workplace homicide is not inconceivable.
The workplace investigator can play a key role in the early identification of individuals of concern, while also giving peace of mind in low-risk situations.
 WorkSafeBC Regulation 4.27 Definition “violence”