In the series finale of our workplace investigations series, Jill and Dana explain the process will look like for the respondent. They elaborate on how power imbalances, credibility, and intent all come into play in investigations. and how an employment lawyer can help you understand your rights.

Full episode transcript below:

Male 1: This podcast is produced by Nelligan Law.

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

Jill: I’m Jill Lewis and we’re Senior Associates at Nelligan Law and we’re superexcited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.

Dana: Hi, I’m Dana.

Jill: I’m Jill, and this All Worked Up and this week we are talking about our third and final installment in our Workplace Investigation Series.

Dana: Yes.

Jill: Investigations where you’re – 

Dana: The responder, you’re the [unintelligible 00:00:46].

All: We’re the respondent; sorry.

Jill: Yeah, it’s our series finale.

Dana: You’re not in a good mood, no.

Jill: No, so we have already talked about, in the last two episodes workplace investigations, obligations for employers –

Dana: Yeah.

Jill: – and then what the process will look like for a complainant.

Dana: Yes.

Jill: – and now we’re looking at what it’s like for a respondent.

Dana: Yeah. 

Jill: You know said initially that we have acted for complainants, we have acted for respondents, we have done investigations, you have advised employers where they’re in the situation, and a respondent is a really difficult position to be in.

Dana: Yeah.

Jill: And when you think about harassment, right, like you’re like, “Oh, this is a harasser” and it’s like you can’t make that conclusion ahead of time –

Dana: Yeah.

Jill: – and sometimes when the person even is found guilty of harassment or found to have committed harassment it’s sometimes not even intentional, which we’ve said it a few times now –

Dana: Yeah.

Jill: – intent is not really part of the test, it’s more the effect –

Dana: Exactly.

Jill: – like the amount to harassment so it can be really, really challenging for someone who is named as a respondent in an investigation.

Dana: Yeah.

Jill: One of the things that you and I have talked about a lot is the power and balance between like a supervisor and subordinate in a romantic relationship.

Dana: Oh, yeah.

Jill: And you know maybe the supervisor thinks that was totally – it was totally wanted, like it was –

Dana: Like consensual.

Jill: Yeah, totally consensual –

Dana: Yeah.

Jill: – relationship and then you get this complaint and that can be devastating, and it’s possible that that is found to be harassment because of this power and balance. That the person really couldn’t truly consent because that supervisor had the ability to affect their career, like to confer a benefit or –

Dana: Confer a benefit, deny –

Jill: Yeah.

Dana: – or deny a benefit.

Jill: Even if they had no intention of doing so.

Dana: Yeah, yeah, yeah; oh, yeah. We’ve talked about this.

Jill: A lot.

Dana: Cane you ever have – is there – can you ever have a consensual relationship between a superior and their employee? It’s tricky. I don’t think so but anyway.

Jill: I mean it’s tricky, right?

Dana: Yeah.

Jill: Maybe if that is the case – well, that’s getting on.

Dana: We’re not going to start advising people on how to date in the workplace but –

Jill: We might.

Dana: – but what we will say –

Jill: Not today.

Dana: – is that, yes, is that it happens. Maybe there was no intent.

Jill: And that’s where those situations can be absolutely devastating because then to find out –

Dana: Exactly.

Jill: – oh my God, I’ve been called a harasser.

Dana: And often the respondent is coming – they can be totally blindsided by this, right?

Jill: Yeah.

Dana: So where the like complainant and the employer comes at this, they’ve sort of – like they’ve heard about the complaint and they’re going through a process and they’ve had a chance to advise and then the respondent just sometimes gets either an email or a phone call and it is coming out of nowhere –

Jill: Yeah.

Dana: – in some situations, right? They had no idea what they did was harassment or what they did was inappropriate.

Jill: Or unwanted behaviour.

Dana: Or unwanted and it can be so stressful. So I mean like first off for anybody who is going through this, like we are aware that it is incredibly difficult and it is very stressful to be part of this situation. Immediately you assume that your coworkers know and everybody thinks that you’re a harasser and this is going to ruin your like career and your reputation and things like that. 

Investigations need to be confidential, right, so remember that. It is supposed to stay within sort of the relevant parties and the employer and you can really hold the employer to that –

Jill: Right.

Dana: – and then you know maybe say like I expect that this will continue to remain confidential. You’re likely going to want to reach out to someone kind of right away.

Jill: Yeah.

Dana: You know hopefully you’re getting a phone call and not an email but you’ll want to speak to a lawyer right away just to like understand your rights and like what this process is going to look like.

Jill: Yeah, and they may not be superinvolved, right? 

Dana: Yeah.

Jill: Just because you have a lawyer doesn’t mean that a lawyer is immediately sending a letter and you –

Dana: No, no, no.

Jill: – feel like – they’re typically in – you know often in the background.

Dana: Yes.

Jill: Sort of being there if you need them as kind of –

Dana: Yeah.

Jill: – a separate support person in that you can still have your own support person who attends anything with you.

Dana: Yeah.

Jill: But it’s good to just make sure that your rights and stuff are being respected.

Dana: Yeah.

Jill: And I also just wanted to circle back quickly to the beginning, which actually kind of leads into the whole credibility, reliability thing again. 

Dana: We’re circling, we’re leading, we’re following this crazy trail map that we’re just coming up with on the fly.

Jill: We were here, we were there, now we’re going back here. Anyway, like we were saying that you know they may not even have realized what they did was harassment. They may not have done anything.

Dana: OK, yeah.

Jill: Right? It could be – that’s me assuming that they did.

Dana: Exactly, exactly, there are situations –

Jill: Thank you for calling me out.

Dana: Well, no, I’m not, but it’s just that there are situations where a complaint is either fabricated or there was a perception of something that’s not accurate, so the person believes what they’re saying but it’s not – the investigator ultimately finds that that didn’t happen. So it’s not even necessarily that they did – for sure they’ve done something, it’s just whatever the – like maybe they’ve done something they didn’t intend or maybe they didn’t do at all. 

Jill: Yeah.

Dana: And it’s like – again, right away you think everybody knows and you know often the respondent is placed out of the workplace on administrative leave.

Jill: Yeah.

Dana: Paid leave.

Jill: That’s hard too thought, right, because it immediately could look like they did something wrong because –

Dana: They think, how do I repair this damage?

Jill: Yeah, but I mean that’s just the employer’s way to – you know the employer is balancing so many rights and obligations, right? The employer owes it to their employees to provide them with a safe workplace and so if somebody comes forward and they think that maybe you’ve harassed someone it may be part of their obligation to keep you out of the workplace.

Dana: Yeah.

Jill: Likely on paid leave.

Dana: If it’s a safety issue.

Jill: If it’s a safety thing, right?

Dana: There may not be grounds for it and that’s again why you say you want to talk to someone –

Jill: Exactly.

Dana: – because if they really shouldn’t be putting you out of the workplace that’s something that you might also want to be raising with your employer about. It’s a possibility that that’s going to happen.

Jill: Yeah. I guess what I’d say right away is like just listen at first; like listen to what the employer is telling you. You know maybe you’re not like responding right away because that’s not the process; like you have the chance with the investigator and you need to know all the facts. Like you need to know what the allegations are so likely the employer is just saying there has been a complaint against you, we’re going to followup. You’re going to get like a formal, you know, summary of allegations and everything so you may want to wait for that before you just – don’t get too ahead of yourself, right?

Dana: Right.

Jill: Like call the lawyer first; if you want to get ahead of this call the lawyer. Careful to just start like emailing and sending out like –

Dana: Especially if you’re shooting off emails because those can be given to the investigator –

Jill: Well, that’s it, exactly.

Dana: – and if it doesn’t match with anything you say because you’re acting in the heat of the moment that could impeach your credibility.

Jill: Exactly.

Dana: We talked about credibility, reliability and honesty last time; if you want to field it again this time just real quick?

Jill: Yeah, so when the investigator is going through the process and they’re making or finding a fact that’s obviously really difficult on he said/she said type evidence. They are going to be making an assessment of credibility. Credibility – assessment of credibility is done through two ways; it’s reliability and honesty so you know they’re going to look at whether you’re being honest, obviously, and then reliability is different than honesty. It’s just your ability to remember events.

So if you have some conflicting evidence out there you know that – the investigator is going to use that and maybe not be able to apply the same amount of weight on your evidence that they would otherwise. So yeah, you want to be careful of what you’re just shooting out right away. 

Dana: Right.

Jill: And make sure you’ve had the opportunity to see what the allegations are. Also, you may not know, right? You may just have been told, OK, there is going to be a complaint against you and you start saying like, “Oh, is it from so and so? Like is it Dana. I knew that one was a troublemaker.” Like, oh, and it’s like – you know?

Dana: Or I knew it was that time but this – no.

Jill: Yeah.

Dana: Yeah, that’s not it at all, yeah.

Jill: Yeah, you know like just slow it down. 

Dana: Yeah. I think a lot of times the employer doesn’t give any of the details. They’re waiting for the investigator to come with the – and give you the actual details and that can be really hard on people. It is really hard on people to be like out of the workplace and be like what did I do? What did I do? 

Jill: I know.

Dana: What did I do? I have no idea what I did. 

Jill: That one’s hard. That one is really hard and it’s so stressful because you’re not sleeping, like I get it. Go see your doctor as well at this time because it can be a very stressful situation. It can take time though for –

Dana: Yeah.

Jill: So the employer has to – like we’ve already talked about in the first episode of this – like speak to the complainant and then retain an investigator. They have to speak to the investigator. They have to make sure that the scope and the mandate is clear. Then the investigator is likely going to speak with the complainant, get a summary of allegations and then maybe send that over to the respondent. Like it can take a week or so; like it’s not just going to –

Dana: Yeah, it can take – or longer.

Jill: Or longer, right, because you have to think of peoples’ timelines too so it’s really hard because you’re living it in the moment and this is all you’re thinking of.

Dana: Yeah, and if you’re on leave you have nothing to think about.

Jill: It’s all you’re thinking about.

Dana: Yeah.

Jill: For everybody else it’s not – they’re not like, “Oh, good, we got Joe Blow out of the workplace.” No, like they’re just – it just takes time for –

Dana: And they’re doing their job and it’s like –

Jill: Exactly, so if you haven’t heard – if you’ve been put on leave and you haven’t heard anything for a week or two like don’t be shocked. I know it’s really stressful, right, but you are going to have that opportunity because you are owed a procedural fairness, and do we want to talk about that a little bit, like what your –

Dana: Yeah, so that’s where – we did talk about it with respect to the complainant, are they allowed to stay anonymous? The answer to that one depends because what you are entitled to as a respondent is to know the details of the allegations made against you, and in a lot of cases that is going to let you know who the complainant was if the name is just not right out there.

Jill: Yeah.

Dana: A lot of cases you’re just going to have to get the name.

Jill: Yeah.

Dana: And you get that – you are allowed to know these are the allegations against you and this is the case that you’re essentially answering. That you are providing a response to, on X date you did you this. On X date you did that. It can’t just be like you’re accused of harassing so and so, go. How do I answer that? You have to be able to answer it.

Jill: And that may be why you want a lawyer in the background too, just to review that, right, because maybe you still have to – maybe you answer it to cooperate but you want to have it on the record that I don’t feel that I know the substance of these allegations.

Dana: Yeah, and I’ve seen that a number of times.

Jill: Yeah.

Dana: I actually you know have seen cases where people have insisted on remaining anonymous, which has made it too difficult to provide specifics, which has made it nearly impossible for a respondent to participate.

Jill: Yeah, how do you respond to that?

Dana: You have to have that information in order to participate fully and to be able to answer the – and that is principle – like a fundamental – what is it, principle of fundamental justice?

Jill: Yeah, principle of fundamental justice, yeah.

Dana: Like you have to be able to respond.

Jill: Exactly, yeah.

Dana: So you meet with the investigators?

Jill: Yes, you have to be impartial. They have to – you are owed that; that this process is going to be assessed by somebody who is impartial, usually a third party.

Dana: That’s where an internal person could be a – if you have concerns about the investigator’s ability to be impartial, again those should be raised.

Jill: Yeah.

Dana: You meet with them, you know talk to them. Sometimes you’ll have to provide a statement or they will draft a statement and have you confirm it.

Jill: Yeah.

Dana: That goes back to the complainant to answer to anything new that you’ve added and just like a complainant you also get the opportunity to provide any witnesses. It’s typically not just, OK, this person said that I harassed them, but this person would say that I’m awesome.

Jill: Or like character witnesses?

Dana: Yeah, like sometimes.

Jill: Yeah, you can. That is evidence.

Dana: And it sometimes makes sense to provide them.

Jill: It’s not as strong; it’s not as strong.

Dana: The investigator will decide who they interview and a lot of the time they won’t interview those people because they’ll think, well, just because you’re great with one person – like I accept that that person is going to say you’re fantastic –

Jill: Sure.

Dana: – that doesn’t necessarily mean that you didn’t commit this other harassment so I need to know like who saw the incident or whatever, so they’ll decide who to interview.

Jill: Yeah. You may not know who the witnesses are.

Dana: No.

Jill: And you’re not entitled to their names but again you’re entitled to the substance of their evidence.

Dana: Yeah, if they say anything about you; like if they provide anything that you need to respond to you get that –

Jill: Yeah, exactly.

Dana: – and so that’s why it can take some time; like there are a lot of peoples’ schedules that you have to get. Sometimes these meetings are long –

Jill: I know.

Dana: – depending on the actual allegation. You know what else I want to say?

Jill: What do you want to say? Let’s get you worked up about this.

Dana: I’ve got two things.

Jill: Yeah, what have you got?

Dana: Number one –  you can have a lawyer attend with you, and in some cases it is very helpful to have a lawyer there with you.

Jill: Totally.

Dana: What the lawyer is doing there is really making sure that you’re treated fairly. They’re not jumping in and telling your story. It’s up to you to speak to the investigator and you want to be able – like it should be coming from you. It would affect your credibility for the lawyer to constantly be jumping in, unless the investigator is not treating you properly.

If they are badgering you, like being rude, asking the same question over and over again, confrontational, like that’s where your lawyer would step in, so that’s number one. The lawyer, if they do go usually doesn’t have a huge role –

Jill: Yeah.

Dana: – but they’re there kind of to make sure everything goes well. Point number two – think about how you communicate with the investigator.

Jill: So important.

Dana: Because it’s easy to say – like just even how we started off, respondent, you’re guilty of harassment. That idea is sometimes automatic, even though we have this whole principle, innocent until proven guilty, like it’s hard to fight against that as an individual and thinking, oh, everyone is going to think that about me and thinking, oh, the investigator thinks that about me and sometimes you want to come out swinging, right, to defend yourself.

Jill: Yeah.

Dana: You’re passionate about it. You’ve been like sitting at home waiting. This is my moment. You want to make sure that you’re communications with the investigator are polite. I won’t say friendly but sort of like as cordial as you can be because you don’t want to come across as aggressive. You know any of those sort of negative words, bullish, whatever, that they could use to be like, “Yeah, I think this person did commit harassment. I felt harassed by them so therefore …” You know it’s going to – no matter how much you try to set that aside your perceptions of people, you know, may affect that so do consider your communications with the investigator.

Jill: I would like recommend running your story by your spouse, right? Just saying it out loud and just practising it a couple of times. Practising like what? Just how – you know just get it out.

Dana: Well, you can jot down notes too if you want –

Jill: Yeah.

Dana: – like to refresh as well.

Jill: Yeah, and just get it out there just so that you’re very clear. You want to be very clear with the investigator. The investigator is going to look at demeanour but it’s not a major part of this assessment.

Dana: Yeah.

Jill: You know whether you’re making eye contact or whether you are – like shoulders are up versus down, like that type of thing they’re not going to look at but it is hard you know if you are being really like aggressive or your voice is going really high and you’re – you know if you’re being like really assertive with the investigator. You’re learning forward or something like that. Those are things that they may – yeah, that they may take note of. 

Dana: Yeah, if there is a reason for things like you were saying, like rolling your eyes or not looking at them, if you, you know, have any sort of condition or medical – or any reason why you may be engaging in a certain way I would let them know that too.

Jill: Yeah, if you don’t make eye – if you’re a person that doesn’t make eye contact – I don’t know you may want to sort of – 

Dana: Yeah.

Jill: – and let the investigator know that.

Dana: Yeah, exactly, because then they know.

Jill: So they are not questioning why aren’t you looking at me.

Dana: Yeah, why aren’t you looking at me or whatever, to the extent that you’re able to, right?

Jill: Yeah.

Dana: So that’s a consideration. So yeah, they’ll talk to the witnesses. They will make the report. You know I think typically respondents are more keen to have the whole report. They want to know exactly what was said and by whom and you know what were the – what were any of the determinations that the investigator made along the way. At this stage you’re not entitled to the report. Maybe in the litigation process you’d get it but you get the findings and any remedial action that’s been taken.

Jill: Unless it says so in your policy; sometimes they may have a policy that says you’re entitled to it so you need find that out, but yeah, you’re typically not entitled to all of that. But entitled to the findings, sort of a summary and then they’ll be – there may or may not be some recommendations at the end there and then –

Dana: Yeah.

Jill: – going from there, right? The employer might have like some suggestions, some training, maybe there was a mediation, something like that.

Dana: There can be recommendations even if no harassment is found too.

Jill: Oh, you know what, absolutely.

Dana: There was no harassment but I do think you need to revise policies, that training – like I don’t think this rose to the level or harassment but it wasn’t great so maybe you need some training.

Jill: Yeah, because every like little – like don’t think that, OK, I’m a manager and every time I tell an employee that they’re not doing a great job they’re going to raise harassment.

Dana: Right, performance management is expressly not included as harassment.

Jill: Exactly.

Dana: It’s genuine performance management, not harassment.

Jill: Exactly, so don’t – you know don’t be too fearful of just saying anything at all. But yeah, there may be some recommendations at the end. It didn’t rise to harassment but maybe we do do some training or something like that.

Dana: Yeah, so it’s tough.

Jill: Yeah.

Dana: We know how tough it is and like we’ve been by peoples’ sides through some of these situations and we know it can be really hard. Like the same as for the complainant. It can be really hard and it can be really hard for the respondent too.

Jill: Yeah, we recognize that.

Dana: It’s not an easy process for anyone and you know you hope that you’re treated with fairness and respect throughout and that you know in the end there is a fair resolution, but it’s hard. It’s hard.

Jill: It’s a long process, we get it, and yeah, I guess you have to try not to be resentful against the process. It is what it is. There is – I don’t know, I mean there is more and more of these investigations so I wonder if they will develop, but right now this is sort of what we do –

Dana: Yeah.

Jill: – and it can be long and it can be tedious and it’s a lot of like sitting around waiting.

Dana: You might feel alone but there have been how many other people; like this is happening all the time 

Jill: Exactly, yeah.

Dana: – so there are a lot of other people who have been in that same situation.

Jill: And your employer is just trying to do the right thing a lot of the times, right? Like they don’t automatically think you’re the bad person just because you went off. They’re just trying to do the right thing.

Dana: Yeah; mostly. You might have some gripes against your – there might be problems –

Jill: There might be.

Dana: – which is again why we say talk to a lawyer, make sure that things are – that your rights are protected –

Jill: Exactly.

Dana: – but we know it’s hard; we know it’s really hard.

Jill: Yeah. Well, OK, so that’s it for Workplace Investigations. That’s our threepart series. I don’t know what we’re talking about next week.

Dana: We don’t have a clear ending this time. That’s the cliff hanger; the end.

Jill: Ooh, what will we –

Dana: A miniseries.

Jill: A miniseries.

Dana: What’s coming next?

Jill: A miniseries; something exciting, something that’s got us All Worked Up.

Dana: Yeah.

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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