AWI responds to Howard Levitt’s article posted in the Financial Post:
Friday, February 7, 2020
Please see below a response submitted by AWI, in regards to Howard Levitt’s article posted in the Financial Post: https://business.financialpost.com/legal-post/howard-levitt-workplace-investigations-are-a-boondoggle-and-often-leave-victims-twisting-in-the-wind.
Workplace Investigations Are Not a Boondoggle - By Emily Kaufer, Monica Jeffrey, & Karen Kramer
While differing opinions and healthy dialogue keeps us informed, we respectfully disagree with Howard Levitt’s controversial opinion that workplace investigations are a “boondoggle. Impartial workplace investigations provide employers with reliable information to make informed decisions that affect people’s livelihoods. Not only is an impartial investigation a legislative requirement, under both federal and provincial laws, but jurisprudence also establishes the right of both parties (a complainant and respondent) to a fair and balanced process.
The assertion that “employers should immediately obtain the accused’s version of events and then go back to the accuser” smacks of bias and lacks procedural fairness. Such knee-jerk reactions can lead to bad decisions and low morale in the workplace. When there are disputed facts, an impartial investigation allows the complainant and the respondent to share their versions of the events through a fair and impartial process. Based on this information, a well-trained investigator can make reasoned findings of facts upon which the employer can then rely when deciding how best to respond to the complaint.
Workplace investigations need not be “extensive” or “expensive.” A properly conducted fact-finding process should not be damaging to “victims”, “suspended employees” or the employer. Mr. Levitt fails to recognize that Canadian law mandates that an employer respond to allegations of discrimination, harassment, retaliation and bullying by conducting a fair and impartial investigation. The Ontario Occupational Health and Safety Act expressly states that an investigation must be conducted that is appropriate to the circumstances. Therefore, it is important to not only choose the right investigator, but to also right-size the process. Similarly, the Canada Labour Code requires that an investigation must be conducted by a “competent person”, which is defined as someone who is “impartial and is seen by the parties to be impartial”.
The federal government is also considering an extended timeline for completing workplace investigations because such a process should not be held to an artificial deadline. No “competent person” would be expected to complete an investigation in one day.
The Association of Workplace Investigators’ (AWI’s) Guiding Principles for Conducting Workplace Investigations state that the employer should choose an investigator who is “impartial, objective, and possess[es] the necessary skills and time to conduct the investigation.” In some cases, that may be an internal employee who is not only impartial, but who is also perceived by the participants in the investigation as impartial and not subject to influence from the organization’s hierarchy. In other cases, an outside investigator is best suited to conduct the investigation due to: the roles of the participants in the investigation; the need for specialized expertise; or, the bandwidth of internal employees to timely conduct the investigation.
The one accurate statement made by Mr. Levitt is that “outside investigators do not know the company, its personnel, policies or corporate culture.” That is exactly what contributes to their impartiality. Workplace investigators gather information in an objective and neutral manner. An employer can then rely on the findings in an impartial investigation.
There is great value in demonstrating a commitment to a harassment-free and discrimination-free workplace and conducting impartial workplace investigations is integral to this commitment. Doing so benefits employee morale. It allows employees to feel safe and to expect that concerns involving them will be handled in a fair and predictable manner. Employers benefit as well, allowing them to make reasoned decisions about their employees and, in turn, the organization. If there is workplace misconduct, it is not in the employer’s interest to ignore it.
Workplace investigators are not “paid to sanitize the employer’s problems so that they can get more work.” Rather, they are paid to fulfil the employer’s obligation to conduct an impartial workplace investigation, which is required by law. Investigators are only as good as their reputations, which are adversely impacted when they do not demonstrate the requisite impartiality. It is an investigator’s reputation for being consistently impartial and thorough that gets them more work.
Good workplace investigations conducted by a neutral third-party investigator can be expensive, but they are not a waste of time. The danger to the employer for failing to conduct an impartial, thorough and timely investigation can be far more costly than the cost of the investigation itself. Investigations are required by law and policies that dictate that complaints of harassment, discrimination, retaliation and bullying will be investigated. Such a response not only protects the employer, but also employees. When allegations are substantiated, it allows the employer to take appropriate action to prevent further misconduct. When allegations are not substantiated, it allows the individual who is the subject of the complaint to be exonerated.
Emily Kaufer is a Board Member of the Association of Workplace Investigators (AWI), Chair of the Canadian Committee (CAWI), and the Director of Human Rights and Harassment at Air Canada in Montreal, Quebec. Monica Jeffrey is a Board Member of the Association of Workplace Investigators (AWI), former Co-Chair of the Canadian Committee (CAWI), and has a law practice in Toronto, Ontario focused on conducting workplace investigations. Karen Kramer is the President of Association of Workplace Investigators (AWI). She has a law practice in Northern California focused on conducting workplace investigations.