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This week, our workplace investigation series continues with Part 2. Jill and Dana talk workplace investigations from the perspective of the complainant. They know how tough it can be for employees to take the step and bring forward a harassment complaint, and they explain exactly what a complainant can expect throughout the process. They give the expert legal opinion of: Can you be punished for bringing a complaint in the workplace? No way, José!

Full episode transcript below:

Intro: This podcast is produced by Nelligan Law.

Dana DuPerron: Welcome to All Worked Up, the podcast where two employment lawyers break down real-life workplace issues that affect really people. I’m Dana DuPerron –

Jill Lewis: I’m Jill Lewis, and we’re Senior Associates at Nelligan Law and we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers. Welcome to All Worked Up. I’m Jill –

Dana DuPerron: And I’m Dana.

Jill Lewis: – and what’s got us worked up this week?

Dana DuPerron: Well this is part two of our three-part series on investigations. Last time we talked about an employer’s obligations with respect to workplace investigations. Today we are all worked up about what it’s like to be a complainant in an investigation –

Jill Lewis: Exactly, yeah.

Dana DuPerron: – and what you can expect.

Jill Lewis: Yeah, because it can be really hard for somebody to come forward.

Dana DuPerron: Very hard.

Jill Lewis: I mean anyone who comes forward, you’re risking reprisal and – gosh, I don’t want to start off like so negative but –

Dana DuPerron: No. Well, you know what, that’s the feeling, why don’t people come forward.

Jill Lewis: Yeah, yeah, yeah, thank you.

Dana DuPerron: Why don’t people come forward.

Jill Lewis: Why don’t people come forward. Immediately because they feel like they’re going to be punished, they’re going to – yeah. I mean it can happen against your employer, your boss, your manager or supervisor. Sometimes it’s these people that are in this power position and you feel that you are going to be treated differently because you’ve come forward. Or you feel like, “Oh, they’re going to think I’m like that guy” or, “I’m like a trouble – I’m making trouble” and stuff like that, so.

Dana DuPerron: Yeah, difficult.

Jill Lewis: Yeah, I don’t want –

Dana DuPerron: “Maybe I’m wrong,” like maybe …

Jill Lewis: Yeah, because sometimes it’s not – like harassment. Like what we’ve been talking about these last few episodes, right, and I hope what’s clear with people is that we certainly don’t see harassment and blame the way that maybe like television would, you know –

Dana DuPerron: Mm-hmm. Not always –

Jill Lewis: Not always, sometimes.

Dana DuPerron: – but most of the time not.

Jill Lewis: It’s usually like not as blatant, right.

Dana DuPerron: Yeah.

Jill Lewis: It’s not in your face, as in your face. It’s usually subtle. It’s like over a period of time, it can be a pattern. It’s like the little things when you tell someone else, they’re kind of like, “I don’t get it,” but if you’re living it it’s so different. So yeah, I hope people understand like we hear you and we’ve seen –

Dana DuPerron: We’ve seen a lot, yeah.

Jill Lewis: – we’ve seen a lot. and so you’re coming forward I hope this episode helps you sort of just gather what to expect.

Dana DuPerron: Mm-hmm. So can you be fired, can you be disciplined if you come forward with a harassment complaint?

Jill Lewis: No way Jose [laughs]. No way –

Dana DuPerron: No way Jose.

Jill Lewis: – Jose. All right, that’s our legal opinion.

Dana DuPerron: Yeah.

Jill Lewis: No, no. No, you are protected against reprisal and that’s in the Occupational Health and Safety Act, your employer can’t take action against you because you’ve raised a complaint. So that can be helpful to if you feel like you’ve been harassed or you’re part of bullying.

And then like sometimes people know when they’re – like a termination is coming. Like maybe they feel like this is all leading up to a termination, it might be helpful to get this complaint out there just because of timing, right. If you do get fired after this, it’s very suspicious. So that’s, you know, one thing to think about when you’re tossing around whether I make a formal complaint.

Dana DuPerron: Yeah.

Jill Lewis: I mean we think always, like always make that formal complaint but –

Dana DuPerron: Yeah, follow the procedure that’s set out there in the policies, and those policies will give you an idea of what to expect in terms of next steps.

Jill Lewis: Yeah.

Dana DuPerron: So it is usually – sometimes there is – so you’re a complainant, OK.

Jill Lewis: Yeah.

Dana DuPerron: You’ve experienced harassment and bullying.

Jill Lewis: Yeah.

Dana DuPerron: You look at your policy, you go talk to HR or whoever it is who you’re supposed to report this to. They will often discuss, “Have you talked to the person about it,” like is this something that you’ve discussed with the person who you’re calling the harasser.

Jill Lewis: Yeah.

Dana DuPerron: That often should be the first step –

Jill Lewis: Right.

Dana DuPerron: – if it’s at all possible.

Jill Lewis: To talk to the person, yes.

Dana DuPerron: We talked about this before, sometimes they don’t know. They don’t –

Jill Lewis: Yeah, yeah.

Dana DuPerron: And it’s not – what their intention was doesn’t really matter in determining whether or not there was harassment –

Jill Lewis: Yeah.

Dana DuPerron: – but sometimes if you’re able to say to the person, “Hey, that makes me uncomfortable. I don’t like that,” whatever, and they might say, “Oh, I’m so sorry, I had no idea” and stop and that might be enough. And then so that’s often what might be like the first sort of discussion in reporting that. Sometimes you just can’t. Sometimes you just can’t have that conversation, either it’s so bad or it’s something that’s just so uncomfortable. In which case, they’ll usually –

Jill Lewis: Well you’ll want to – you’ll want to make that formal complaint, right –

Dana DuPerron: Yeah.

Jill Lewis: – and you’ll want to get that down in writing and you’ve got – you’re going to have to be clear with your allegation. So we have been going on and on about keeping records, right.

Dana DuPerron: Yeah.

Jill Lewis: Everybody keep a record, this is – and this is the perfect opportunity, right. This is when maybe you bring that record with you to HR and you say, “OK, I have to make this complaint. Here is all my evidence.”

Dana DuPerron: Right.

Jill Lewis: Your employer – so as soon as you come and you complain, and it doesn’t have to be a formal complaint, you know, any sort of mention or informal complaint about harassment can trigger the investigation. The employer chooses whether it’s done internally and externally, so unfortunately you don’t have a choice. You can certainly if they’re going to do it internally and you think that’s inappropriate you can raise issue with that.

Dana DuPerron: Or if you have concerns with the external investigator, if you know them, if there’s some reason that you think they can’t be impartial or neutral –

Jill Lewis: Yeah.

Dana DuPerron: – you can raise those concerns and you should raise it; you should put those concerns on the record.

Jill Lewis: Absolutely, absolutely. Yeah, so the employer will go through the investigation, right. And, you know, maybe it’s small, maybe it’s internal, maybe it’s just with HR, regardless you’re going to want your allegations to be super clear. So it’s not just going to be like Jill says Dana harasses her, it’s going to be [laughs], “She calls her at all hours, she calls her at all hours” [laughs].

Dana DuPerron: What of it.

Jill Lewis: Yeah, it’s –

Dana DuPerron: It’s not unwanted [laughs].

Jill Lewis: It’s all wanted. You’re going to want OK allegations A, B, C, like, you know, and here’s how, why –

Dana DuPerron: And here’s the details, here’s when.

Jill Lewis: – here’s the details. It’s the when, the who, the what, the where, right. Like you want to know where were – yeah, you want to put as many of those concrete details as possible which is why it’s so important to make a record because people’s memories we’re learning now are just terrible.

Dana DuPerron: Yeah.

Jill Lewis: People’s memories are the worst.

Dana DuPerron: Yeah.

Jill Lewis: So oftentimes you’re getting them wrong. If you’ve got –

Dana DuPerron: Even if you think you remember it might not be exactly accurate, but it’s more likely to be accurate it you write it down immediately –

Jill Lewis: Exactly, yeah.

Dana DuPerron: – when it’s fresh.

Jill Lewis: Especially if stuffs happening like during a work trip or something. Like you’re gone on a three-day work trip, things can get super like muddled so even if you’re like sending an email to yourself or whatever. OK, so like we can’t talk enough about notetaking, which is so boring, take notes.

Dana DuPerron: Can you stay anonymous?

Jill Lewis: Can you stay anonymous, yes, but –

Dana DuPerron: It can be tricky because putting those detailed allegations to the respondent, which the respondent is entitled to know, is often going to kind of reveal.

Jill Lewis: Yeah, yeah. I mean can you keep your name out of the report, probably but – well I don’t know –

Dana DuPerron: Well maybe not out of the report but in terms of what’s shared with the respondent …

Jill Lewis: Yeah, yeah. And the –

Dana DuPerron: They’re entitled to procedural fairness.

Jill Lewis: That’s what I was – yeah.

Dana DuPerron: We’ve talked about it, at that point that they have to be able to answer the case against them so not always.

Jill Lewis: Not always.

Dana DuPerron: Yeah.

Jill Lewis: Yeah, that ones really hard. I think people would love to stay anonymous, I don’t think it’s going to – I just don’t know how it’s – I don’t know how it’s going to work for the whole process because everybody is entitled to procedural fairness –

Dana DuPerron: Right.

Jill Lewis: – on both sides. So that ones really tough. So you’ve – OK, so there’s been an investigator. So the investigator will contact you and there’ll usually be like an initial interview. This is a tough thing for complainants is that you’ve got to go through this a few times and I don’t know how else to get around that. Like I –

Dana DuPerron: Yeah.

Jill Lewis: For someone that has to relive – especially if it’s like a really difficult incident that they have to relive, I don’t know how to go about an investigation where you’re not first telling HR your story, then you’re telling the investigator, and then you’re telling the investigator again in more details, you know.

Dana DuPerron: Yeah.

Jill Lewis: All I can say is that throughout this process is to be really transparent and you’re always entitled to a support person. If you need to take your time, if you need – you know, talk to your doctor to make sure there’s no like medical issues, like that you are capable of going through this process, right. Like just be really mindful of that.

Dana DuPerron: Yeah.

Jill Lewis: But you are likely going to have to go through this story a few times.

Dana DuPerron: And usually the investigators are pretty skilled in terms of making you feel comfortable with that and –

Jill Lewis: Yeah.

Dana DuPerron: – and hopefully making you feel heard and stuff so that it’s more upsetting or traumatizing but could even hopefully be cathartic to share this.

Jill Lewis: Yeah, yeah.

Dana DuPerron: Like hopefully there could be a positive there but it’s going to depend on each case. So you’ll tell them your story. Sometimes they’ll do like a written statement and put it back to you or ask you to do a written statement and put it to them like just to make sure that it’s all accurate. And then they share the complaint –

Jill Lewis: Yeah, with the respondent –

Dana DuPerron: Yeah. Sometimes if you provide evidence, like emails or like videos or those kind of – not all the evidence is always shared with – like the allegations have to be put to them but they don’t necessarily hand over all the evidence.

Jill Lewis: Yeah.

Dana DuPerron: It depends.

Jill Lewis: Yeah.

Dana DuPerron: But you’re going to have that discussion. They’re going to talk to the respondent. If you have any witnesses, you know, you give those names and they talk to the witnesses and then they make a report.

Jill Lewis: Yeah, and sometimes you only see the findings and –

Dana DuPerron: You typically only see the findings. Like most employers aren’t going to share the report and they don’t have to at this stage.

Jill Lewis: Yeah, yeah.

Dana DuPerron: If you get into litigation, it’s probably going to come out as like a – what is the word …

Jill Lewis: Discover –

Dana DuPerron: Relevant, relevant –

Jill Lewis: OK, yeah.

Dana DuPerron: – document. I’m like what is word, reasonable, no. As a relevant document it’s probably going to come out.

Jill Lewis: Yeah.

Dana DuPerron: But you may – like you’re probably just getting the findings and any corrective action that’s being taken.

Jill Lewis: Yeah, yeah. And I mean sometimes – and that’s just fine.

Dana DuPerron: Yeah.

Jill Lewis: So when you’re in this process with the investigator, you know, the investigator is being hired to usually conduct a fact finding and it can be difficult. A lot of this stuff is he said she said, right. So when they’re asking you questions, you got to be as truthful as possible.

Dana DuPerron: And as detailed …

Jill Lewis: As detailed as possible.

Dana DuPerron: Yeah, yeah.

Jill Lewis: The investigator is going to be looking for credibility. They are going to make an assessment on credibility, like which party do they believe is more credible and that’s going to be based on honesty and reliability, right. So if you are – like if you make a statement, your initial statement and then you sort of say something completely different to the investigator, they’re going to have problems here, whether they don’t – maybe they don’t think you’re lying …

Dana DuPerron: You just may not be – reliable is different than honest.

Jill Lewis: Exactly.

Dana DuPerron: Honest is are you telling the truth, reliable is is your memory reliable, like can we –

Jill Lewis: Can I rely on it.

Dana DuPerron: – trust what you’re saying not because you’re intentionally –

Jill Lewis: Yeah.

Dana DuPerron: – but maybe you’re misremembering.

Jill Lewis: Exactly.

Dana DuPerron: And that’s where things like documentary or hard evidence kind of matter because if you say, “Oh, you know, they sent me an email saying, ‘Blah-blah-blah,’” and then you show the email and that’s not at all what it says, if it says something different or if you’ve said something that’s not like –

Jill Lewis: Yeah, yeah.

Dana DuPerron: – you know, that’s going to harm your reliability which in turn harms your credibility in terms of who they believe, which is again why it’s important to record keep.

Jill Lewis: Yeah. And investigators are in tune with anybody who’s going through like sexual harassment because we know that memory can be super muddled when we’re dealing with that sort of –

Dana DuPerron: Yeah.

Jill Lewis: – like those really like heavy sort of incidents. So they are alive to that. Like don’t be worried that like, “I can’t remember exactly, I had a lot to drink” and stuff like that, that they’re not going to rely on you, that’s certainly not it. They’re going to be live to it, it’s just that is part of the process, right, is they have to, “How much weight can I put on this certain amount of evidence.”

Dana DuPerron: Yeah, yeah. Part of that’s also if you can’t remember, tell them.

Jill Lewis: Yeah, yeah. Right, exactly.

Dana DuPerron: “I can’t remember, I had a lot to drink. It’s not very clear but like this is what I do know” or whatever.

Jill Lewis: Yes, yes. Or, “This is what I was feeling at that time” because that can be really helpful.

Dana DuPerron: Yeah, yeah.

Jill Lewis: Or, “What I do remember is like the inside of that cab. I do remember, you know, like the cab driver saying something” and it’s –

Dana DuPerron: Yeah, yeah.

Jill Lewis: – you don’t realize some of the important details, right, because you may say something and then maybe like a witness can like corroborate that and the respondent doesn’t and, you know, that might help the investigator make sort of this fact finding. Yeah, so if you’re going through this process, you’re going to have an opportunity to review your statement, usually beforehand. You’re going to be speaking likely to the investigator virtually.

Dana DuPerron: These days, yeah.

Jill Lewis: These days. I don’t know even know if it’s going to go back in person.

Dana DuPerron: Yeah.

Jill Lewis: From what I understand, most investigators are finding that complainants prefer this because they can do it –

Dana DuPerron: They’re more comfortable.

Jill Lewis: – in the comfort of their own home. Investigations sometimes happened in the workplace which would’ve been so awkward.

Dana DuPerron: But then they still may where people –

Jill Lewis: Yeah.

Dana DuPerron: But so if you are able to work from home it may happen and as long as the investigator can see your face and everything they probably – they may be more comfortable assessing credibility, reliability and stuff.

Jill Lewis: Yeah.

Dana DuPerron: If you can’t see someone, it’s not ideal. But if you can see their face then you can –

Jill Lewis: Yeah.

Dana DuPerron: It’s like you’re having that in-person discussion.

Jill Lewis: Exactly. Yeah, exactly. And then it goes to the respondent. And then the respondent gets a chance to tell their side of the story and you’re going to receive that. You’re going to receive their response, right, and have a chance to reply to anything new there, anything that needs to be – anything new, anything added. Witnesses will then be spoken to. You can provide witnesses and like suggestions, and you should tell the investigator why you think this person is a good witness.

Dana DuPerron: Right, yeah.

Jill Lewis: Like I’m not just going to list all my friends at work. It’s like, “No, this person saw this happen” or, “I told this person right afterwards what happened” –

Dana DuPerron: Yeah.

Jill Lewis: – and the investigator is ultimately the person who decides who they interview.

Dana DuPerron: Yeah.

Jill Lewis: Yeah, so you don’t have – you can provide your opinion on who you think is appropriate, but the investigator will decide. Yeah, documents. You want every – like as much documents as possible. Like there is sort of that hierarchy of evidence. You got like your hard evidence, the emails, the text messages, and then you’ve got witnesses and hearsay. So you give the investigator everything and at the end they’ll come to a result and depending on that, you know, there’s like a whole range of options that the employer may take after that.

Dana DuPerron: Right. Yeah, it could be training, could be the harasser is terminated.

Jill Lewis: Yeah, could be moved –

Dana DuPerron: It could be updating policies, yeah, changing –

Jill Lewis: Changing departments –

Dana DuPerron: Yeah.

Jill Lewis: – if you’re like with a large organization but –

Dana DuPerron: Yeah, and like you have to – you have to be mindful that that is not a punishment of the complainant.

Jill Lewis: Yes, yeah.

Dana DuPerron: And the complainant, even if no harassment is found, as long as the complaint was not made vexatiously –

Jill Lewis: Yeah.

Dana DuPerron: – so if it was made in good faith –

Jill Lewis: Yeah.

Dana DuPerron: – if you believed that you had been subjected to harassment and you weren’t just doing this to get at someone –

Jill Lewis: Exactly.

Dana DuPerron: – then you’re safe.

Jill Lewis: Yeah, absolutely.

Dana DuPerron: Like just because they find no harassment doesn’t mean, “OK, now you’re out the door” –

Jill Lewis: Yeah, yeah.

Dana DuPerron: – which is a big thing that I think people need to know coming forward. Yes, maybe it makes the workplace awkward –

Jill Lewis: Yeah, I don’t know how to get around –

Dana DuPerron: – maybe mediation is even a recommendation at the end like, you know, “I think that these people can work through this,” but you are safe –

Jill Lewis: Yeah, yeah.

Dana DuPerron: – in terms of they can’t act against you.

Jill Lewis: And that investigator may be the one that mediates too. Like if – you know, they could. There’s potential that they’re involved past that point too. But yeah, so there’s a huge range. So that’s sort of like what the complainant can –

Dana DuPerron: It’s what to expect.

Jill Lewis: And, you know, it can take several weeks or months.

Dana DuPerron: Investigations aren’t typically quick.

Jill Lewis: Yeah. You have to realize, like especially if you’re hiring a lawyer and there is a lot to – there’s a lot around like just timing wise and speaking with people. Confidentiality, that’s just like one thing I want to throw out there to complainants is keeping that process confidential. That would be something that could work against you if it comes out that you’ve been –

Dana DuPerron: You’ve been telling everyone.

Jill Lewis: Yeah, or like after you discuss – like after you spoke with the investigator you like called up the witnesses and said, “So here’s what I said.”

Dana DuPerron: Yeah, yeah.

Jill Lewis: Don’t do that, like –

Dana DuPerron: And this is different. We’re not saying like if you experienced this – like if you’re experiencing harassment to not tell it –

Jill Lewis: Not talk to someone.

Dana DuPerron: – your close co-worker or anything. It’s within that process not repeating like, “Hey, this is what I said” and then they know, “OK, then I have to” like –

Jill Lewis: Yeah, yeah.

Dana DuPerron: – because even subconsciously that affects people’s memories, right, if you’ve had those conversations.

Jill Lewis: Yeah. You really have to respect the process, yeah.

Dana DuPerron: Yeah.

Jill Lewis: That’s I mean –

Dana DuPerron: It’s tough but that’s –

Jill Lewis: Yeah, and we’re seeing more and more of them. And, you know, you are entitled to a support person, you can have your own lawyer present. So if you’re making a complaint or you feel – yeah, if you’re making a formal complaint, it can be really helpful to have the advice of a lawyer. The lawyers like kind of also help draft some of these –

Dana DuPerron: Yeah.

Jill Lewis: – right, just to make sure it’s like really clear because sometimes we’ve gotten documents and it’s like 20 pages of just like single space rambling and –

Dana DuPerron: Yeah.

Jill Lewis: – you know, lawyers can help you like really clean it up so that –

Dana DuPerron: Yeah, pull out those details. Like we were talking about what is the actual harassment, discrimination or bullying that you –

Jill Lewis: Yeah, exactly.

Dana DuPerron: – suffered and make sure that you’re clear on that, yeah.

Jill Lewis: Yeah. Yeah, exactly. So it would be really helpful using a lawyer through that process.

Dana DuPerron: Yeah.

Jill Lewis: So I mean that’s workplace investigations for complainants.

Dana DuPerron: Yeah.

Jill Lewis: That’s what you got to know.

Dana DuPerron: And next week the third part. Third and final installment.

Jill Lewis: The respondent dun-dun-dun – no, it’s not – they’re not all bad [laughs].

Dana DuPerron: No [laughs]. It can be very stressful, if not more stressful for the respondent.

Jill Lewis: It can be so stressful. So stressful.

Dana DuPerron: So we’ll tell respondents what to think about next time.

Jill Lewis: OK, all right. We’ll talk to you next time.

 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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