Workplace Investigations

• Breaking down the definition of harassment – the tricky situations including what is a “workplace” and what does “vexatious” mean?
• Are there legal differences when assessing whether there has been harassment under the Occupational Health and Safety Act and the Human Rights Code?
• Discrimination and harassment – applying the correct legal principles
• Poisoned work environments – what are the elements of the test?
• What constitutes a reprisal and when should reprisal allegations be included in an investigation? When should they be investigated separately?
• Investigating complex allegations of workplace bullying, including “Mobbing”

Investigating Allegations of Racism, Systemic Racism, Prejudice and Bias in the Workplace

• Establishing systemic racism – what type of evidence in required?
• Identifying/defining microaggressions
• Examples of systemic discrimination and harassment, stereotyping and racial profiling in the workplace
• Strategies and tools to mitigate bias

Faculty
Lauren Bernardi, Bernardi Human Resource Law LLP
Esi Codjoe, Turnpenney Milne LLP
Suhaib Ibrahim, Bernardi Human Resource Law LLP
Lavinia Latham, Bernardi Human resource Law LLP
Hena Singh, Singh Investigations & Mediations; Singh Lamarche LLP

Understanding and Investigating Complaints of Sexual and Gender-Based Harassment and Sexual Violence

• Why are complaints of sexual harassment and sexual violence especially challenging?
• Understanding the psychology around sexual harassment and sexual violence
• Legal definitions under the Occupational Health and Safety Act and the Ontario Human Rights Code
• Understanding cultural differences and their impact in the context of responding to sexually harassing behaviours

Trauma Informed Workplace Investigations

• Defining trauma and recognizing the forms of trauma
• The impact of trauma on the investigation
• Conducting your interviews with a trauma informed approach
• Assessing credibility where there is trauma

Challenges in Investigations: Hot Seat Panel 

In the last session of Day 2, Dean Benard will moderate a panel of three experienced workplace investigators who will answer your questions on your most pressing challenges when conducting investigations. 

Practical Exercise Primer 

The day concludes with an explanation of the practical exercises planned for the afternoon on Day 3, where students will conduct a one-on-one workplace investigation interview. 

Faculty
Dean Benard, President + CEO, Benard & Associates
Lauren Bernardi, Bernardi Human Resource Law LLP
Mihad Fahmy, Mihad Fahmy Law
Suhaib Ibrahim, Bernardi Human Resource Law LLP
Lenore Lukasik-Foss, Director, Sexual Violence Prevention and Response Office and Anti Oppression Programs, Equity and Inclusion Office, McMaster University
Mireille Mortimer, Mortimer Khoraych Professional Corporation

Ensuring procedural fairness is key to conducting a workplace investigation but determining what is “appropriate in the circumstances” as prescribed in the Occupational Health and Safety Act often presents challenges. Best practices for creating a procedurally fair workplace investigation will be covered including:

The Process

• The Ministry of Labour’s Code of Practice to address Workplace Harassment under Ontario’s Occupational Health and Safety Act – how to meet or exceed the provisions when conducting an investigation. What is the impact of demonstrating adherence to the Code?
• Who decides on the process – the investigator, the retaining client or both?
• What is the difference between a workplace culture audit and an investigation?
• What are you legally required to do and what amounts to best practice?
• Internal vs external investigations
• Passing the threshold test – is it a prima facie violation of a policy or violation of law?
• Dealing with challenging requests from counsel, support people and the witnesses themselves

Interviews

• Selecting witnesses – do you need to meet with everyone who is named by a party and if not, what is the basis for selecting witnesses?
• How much information do you need to give in advance of the investigation interview?
• How to structure a summary of allegations

Timeliness and Handling Delays

• Dealing with timelines and delays, and clients’ expectations
• At what point do you stop the investigation?

Completing or Expanding the Investigation

• What should you do when a respondent, in response to a complaint, brings forward allegations of his/her own? Should those respondent allegations be attached to the issue in the main investigation or constitute something else entirely which would require its own investigation?
• How to know when your investigation is done

Practical Exercises (Case Study Scenario)

In the afternoon session you will conduct part of an investigative interview with facilitators trained to give individualized feedback.
Note: practical exercises will not be recorded/archived.

Faculty
Sarah Atkinson, Lawyer, Workplace Investigator, Mediator
Monica R. Jeffrey, JMJ Workplace Investigation Law LLP
Nathaniel Marshall, Marshall Workplace Law
Natasha Savoline, Bernardi Human Resource Law LLP 

Making Findings

• Credibility assessments – how are they utilized? What are the challenges around credibility assessments?
• What are the differences between credibility, findings of fact and findings of law – analyzing the differences
• Assessing behaviour in the context of workplace policies – even if it doesn’t meet the legal threshold, is it still a policy violation?

A Practical Primer on Effective Report Writing 

• The good, the bad, and the in‑between – examples of best practices … and those that fail to achieve the necessary standards expected of an effective workplace investigation report
• The different styles and types of reports
• Cost sensitive reports for small organizations
• Distilling large amounts of information into a manageable and readable report
• Practical drafting exercises 

Faculty
William Goldbloom, WG Resolutions
Suhaib Ibrahim, Bernardi Human Resource Law LLP
Kenda Murphy, Kenda’s Law