The value of a proper investigation can’t be overstated.
And yet, we continue to see more and more cases working their way through the system that suffer from what can only be described as biased, unfair, incomplete, or otherwise flawed investigations.
“Harassment” and “violence” are defined terms in the Occupational Health and Safety Act and other legislation. The starting point for any investigation into either needs to be a robust understanding of what those terms mean legally - not just in the sense of what the legislation says, but how it’s been interpreted and applied in various cases. A proper investigation will provide both factual findings (i.e. whether a specific behaviour occurred), and legal analysis (i.e. whether it meets either of the foregoing definitions, and if requested, the consequences of that finding for the parties involved).
Although managers and human resource professionals often conduct these types of investigations from a disciplinary and/or human rights standpoint, the obligations imposed under the OH&S legislation add entirely different considerations to the equation. Particularly when you consider the obligation on employers to ensure the psychological and social well-being of workers, and that investigations into incidents of harassment and violence often involve asking very personal, sensitive, and at times embarrassing questions. Once those questions are asked and answers given, there’s no way for the investigator, witnesses, or complainant to disabuse themselves of what they’ve seen, heard, or shared. And in certain investigations and work environments, that in and of itself may result in a host of other issues.
Such investigations also suffer from another problem. That being, a complete lack of legal privilege.
Why is legal privilege important in these types of investigations?
Alberta’s OH&S legislation requires you to prepare a “report” of the circumstances giving rise to the incident of harassment or violence, and the corrective action taken. Although there is a statutory prohibition in the legislation that prevents the report from being used in future proceedings, a copy of it must be made available to OH&S officers upon request. While that may not seem like a big deal, it certainly can become one. Particularly if your report includes findings or analysis that indicate a breach of the OH&S legislation took place, and the OH&S officer sees fit to try and secure that evidence elsewhere, albeit in a different form.
It's nuances like these that are crucial for employers to understand, and that further underscore the importance of retaining experienced OH&S counsel like F2 Legal Counsel to conduct and/or oversee your workplace harassment and violence investigations. Doing so allows you to prepare two investigation reports: one for limited distribution, that is protected by legal privilege; and one for OH&S, that complies with the "circumstances surrounding" and "corrective action taken" requirements of the Occupational Health and Safety Act.