Harassment investigations require that investigators not only have the knowledge and the research, planning, interviewing and analytical skills, they must also be sensitive to the emotional issues and the impact that an alleged harassment situation has on individuals and on the workplace as a whole. This guide has been designed to ensure that the investigator will be able to undertake thorough and impartial investigations into harassment allegations. It is also intended to provide a reference document that will assist the person responsible for managing the harassment complaint process to ensure the highest degree of quality.
The written complaint of harassment should be submitted within 12 months of the last incident or event of alleged harassment (unless there are extenuating circumstances) as prescribed by the Directive on the Harassment Complaint Process. Allegations concerning events which occurred outside of this time limit can be included if the complainant can demonstrate that the incidents are directly related to the allegations that fall within the prescribed time limits. This is especially important in cases where the complainant intends to demonstrate a pattern of events.
Analyzing All the Facts and Allegations
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The Privacy Act requires that Federal Government institutions that collect personal information from individuals for an administrative purpose inform them of the purpose for which it is being collected. The information provided in the course of an investigation is collected under the authority of the Financial Administration Act and is considered to be required for the purpose of dealing with harassment allegations, to make decisions as to whether or not harassment has occurred, and in such cases to determine appropriate action, including disciplinary and/or corrective measures.
Every effort should be made to resolve workplace issues through an informal resolution process. Informal resolution processes are also commonly called interest based conflict resolution, Informal Conflict Management System and alternative conflict resolution. However, when this process has been unsuccessful, declined by the parties or if it is deemed inappropriate, the person responsible for managing the harassment complaint process may initiate an administrative investigation to determine whether the allegations are founded or not. An effective investigation of harassment allegations is fundamental to the successful resolution of workplace harassment.
Applying the principles of procedural fairness (see Section II), the investigator should interview the parties as well as any pertinent witnesses with respect to each allegation to ascertain all relevant facts relating to the complaint. In particular, the investigator should consider the following questions:
Should additional allegations be made during the course of the investigation, such allegations are to be brought to the attention of the person responsible for managing the harassment complaint process to determine whether they should be included in the mandate for investigation. If these allegations become part of the investigation, they are to be presented in writing to the respondent.
The written allegations should contain a detailed explanation of the alleged incidents, the name of the respondent, the relationship between the parties, a description of the alleged incidents including the date, time and location and the names of witnesses, if applicable.
The written allegations may include the names of people believed to have witnessed the alleged incidents or those who may have been aware of other information directly related to the allegations. In addition, the response of the respondent may include the names of witnesses.
If there is any uncertainty about their relevance to the investigation, the investigator should clarify their pertinence with the parties. Witnesses must have some direct correlation to the allegations. To determine the relevance of their testimony, the investigator could ask the parties to describe how a certain witness will contribute to the investigation. The investigator has the discretion to determine which witnesses to interview and may decide not to interview certain individuals if it is unlikely that they will add any value to the investigation. For example, in assessing whether the testimony of a witness is relevant, the investigator may decide that a great number of witnesses is not needed to substantiate the same allegation and that anything that is admitted by both parties will not need to be confirmed by a witness.
The investigation process is subject to the provisions of the Access to Information Act and the Privacy Act. Essentially, this means that witnesses cannot be assured that the exchanges with the investigator will be kept confidential. Any person questioned in the course of an investigation may have access to the investigation file to obtain information that relates to him or her since this is considered to be their own personal information. This principle applies to interview notes and any other documentation that the investigator uses during the investigation. The investigator should take care to record personal information only when it is relevant and appropriate, and to clearly distinguish between facts and opinions.
The duty to act fairly must be distinguished from the traditional principles of natural justice applicable to courts of justice and quasi-judicial tribunals. When a decision that will have serious consequences for those involved is made, there is a duty to provide certain procedural protections throughout the process. The more serious the allegations and potential negative repercussions for the person accused of harassment, the more stringent the aspects of procedural fairness should be. Investigators should always respect procedural fairness, but the extent to which measures are taken to protect these principles will depend on the nature of the allegations and the consequences for the parties; this concept is explained in greater detail in the following paragraphs.
The respondent has the right to know the totality of the allegation(s) made by the other party and must be afforded a reasonable opportunity to respond to them. It is generally the role of the person responsible for managing the harassment complaint process to notify the accused party of the allegations at the outset by providing him or her with a copy of the allegations and an opportunity to respond.
The parties must be afforded the opportunity to present their version of the facts, identify witnesses and submit documentary evidence (documents, cassettes, tapes, electronic files, photographs, etc.).
It is then up to the investigator to decide whether the evidence submitted is relevant and admissible. Any evidence that confirms or refutes incidents related to the allegations should be admitted as evidence.
Every person who testifies in the investigation should have access to the statements to verify their accuracy. To ensure this, the investigator should ask the witness to sign and date their statement, before the preliminary summary of facts is written and disclosed to the parties.
Under normal circumstances, the facts will be gathered during an onsite investigation; the parties to the dispute and the witnesses will be questioned in-person. To satisfy the principles of procedural fairness, the parties must be afforded an opportunity to review the statements of the other party and witnesses through the preliminary summary of facts. This document is limited to reporting the facts as gathered by the investigator. This summary is disclosed to the parties, who have a reasonable opportunity to rebut, comment on or correct the information relied on by the investigator before completing the analysis and making the findings in the final report.
In resolving harassment situations through administrative investigations, the parties must be treated with dignity and respect. The allegations are simply that - allegations. Directly or indirectly, the complainant must establish to the investigator that harassment did, according to the balance of probability, take place. Until that happens, it must be assumed that the harassment did not occur. This is called the burden of proof.
When analyzing the facts, the investigator will base his or her conclusions on the balance of probability. This is the civil standard of proof that an incident was more likely to have occurred than not.
Because sexual harassment does not generally occur in public, in order to make a determination as to whether someone was sexually harassed, circumstantial evidence is considered by drawing inferences from certain behaviour. For the same reason, the credibility of witnesses is even more critical in sexual harassment cases than in any other type of harassment. Cases may be determined based on an assessment of the credibility of the parties and witnesses. Credibility implies that witnesses tell the truth without any attempt to hide or exaggerate the facts, in a straightforward and honest manner.
In making a finding whether allegations of abuse of authority are founded or not, the investigator should consider whether there is any foundation for the actions, observations or conclusions reached by the manager or whether there is evidence of improper intent on behalf of the accused. In order to make a finding of abuse of authority, the conduct must also meet the definition of harassment.
The investigator should identify all the pertinent issues that need to be addressed in preparing the investigation plan and adjust it as required throughout the course of the investigation. The complainant is normally interviewed first, followed by the respondent since they are most closely related to the allegations and will be in a position to provide the most relevant information. Other witnesses should be interviewed in the order of the expected value of their contribution for addressing key investigative questions.
Upon completion of the information collection phase, the investigator should have collected information that will permit the formulation of a summary of facts as they relate to each allegation and any other requirements of the mandate. 2ff7e9595c
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