Canadian HR Reporter

CanaDian hr reporTer July 14, 2014 FEAtuREs 13 COST: $69 + applicable taxes LIVE WEBINAR TIME: 12:00 - 1:00 p.m. ET REGISTER ONLINE: www.HRReporter.com/CPDCentre For more Live and On-demand Webinars, visit us online. MOBILE DEVICE MANAGEMENT FINDING THE PROGRAM THAT FITS MANAGING DIFFICULT CONVERSATIONS IN THE WORKPLACE Balance the benefits with the legal obligations of employees using mobile devices for work. PRESENTER: Ryan Treleaven & Carol Chan | Sherrard Kuzz LLP DATE: September 4, 2014 Do you understand what makes a conversation difficult? Refine the skills and techniques you need to discuss difficult issues and deal with difficult people effectively. PRESENTER: Oliver Martin | Stitt Feld & Handy Group DATE: August 28, 2014 WEBINAR SERIES Oliver Martin Ryan Treleaven COnFLICT MAnAgeMenT Workplace investigations need to be thorough, unbiased By Michael Richards and Nicholas Sharratt m ary complains that ev- eryone went to lunch and they didn't invite her — again. Bob complains his supervisor is harassing him and giving him all the worst assign- ments. sue tearfully reveals her supervisor has been sexually ha- rassing her. what do all of these incidents have in common? In each case, the employer likely has a duty to investigate — not just a moral duty, not just an obliga- tion as a good HR practice, but a legal responsibility. In Morgan v Herman Miller Canada Inc., the Ontario Human Rights Tribunal found — despite the fact the employee had not ac- tually been discriminated against or harassed — that the employer had breached its duty to act rea- sonably in responding to allega- tions of harassment. e tribu- nal awarded Morgan more than $70,000 in damages. In Disotell v Kraft Canada Inc., the Ontario Superior Court of Justice found the employer had failed to conduct its investiga- tion in a serious manner because it failed to interview all relevant parties, and refused to provide the employee with particulars of the alleged incidents. In Elger v Home Hardware Stores Limited, the Alberta Court of Appeal found an employee ac- cused of harassment had been wrongfully dismissed and award- ed punitive damages because of the flawed workplace investiga- tion. e employer's investigator was untrained and biased against the accused employee, and had failed to disclose the details of the allegations to the accused until after the dismissal had occurred. When an employer is faced with a complaint of harassment, a legal obligation to investigate and address the complaint may arise under human rights, occupational health and safety or worker's com- pensation legislation. e challenges inherent in con- ducting a workplace investigation fall onto the shoulders of HR pro- fessionals and managers who are increasingly expected to act as though they are trained, experi- enced investigators. Plan the investigation When you receive a complaint, the first thing to do is plan the in- vestigation. ere are a number of items to consider and set out in an investigation plan: •the identities or interests of the individuals involved •the type of investigation re- quired (formal or informal) •whether external assistance is needed •whether a particular investiga- tive process must be followed (by law or policy) •whether serious disciplinary action or termination is a likely outcome •whether the issue involves off- duty conduct or criminal or quasi-criminal conduct. Considering and setting these items out in a written plan will provide a better understanding of the nature and context of the alle- gations and how to move forward. e accused employee should be presumed innocent until proven guilty and, if possible, should not be suspended during the investigation. However, if the alleged mis- conduct is serious, if the com- plainant cannot safely be in the workplace with the accused or if there is a reasonable concern the accused will retaliate against the complainant or compromise the investigation, consider suspend- ing the accused with pay pending the outcome of the investigation. Investigate Assign a point person to lead the investigation and ensure the investigator has received proper training, is familiar with appli- cable policies and does not have any connection, personal or oth- erwise, to the complaint or the parties. e particulars of the complaint should be shared with the ac- cused, and the accused should be asked to respond in writing. e accused should be interviewed after adequate background in- formation has been gathered to enable a proper assessment of credibility. is also permits the investigator to gather particulars and disclose them to the accused in the course of the investigation, giving the accused an opportunity to respond and explain. A full and accurate report with conclusions should be produced once the investigation has been completed. e employer should strive to make a determination, even in circumstances where there are competing versions of events. In those circumstances, the threshold may be the "balance of probabilities" — which version of events is more likely to be true. Finally, the outcome of the inves- tigation should be communicated to the parties. If the complaint is substantiat- ed, take steps to prevent the mis- conduct from recurring. Consider whether training or counselling are required, and review applica- ble internal policies to determine if changes are needed. Consider whether the complainant will need compensation or accom- modation, whether the accused is willing to apologize, and whether discipline is appropriate. If the complaint is unsubstanti- ated, explain how that conclusion was reached. Consider whether and how to rehabilitate the re- lationships among the affected employees. A flawed workplace investi- gation can result in significant damages and legal costs. By com- pleting a workplace investigation properly and thoughtfully, em- ployers can reduce their exposure to litigation and liability — and create a more productive and co- hesive workplace. Michael S. Richards is a partner and Nicholas Sharratt is a summer student at law firm Davis in Toronto. Richards can be reached at (416) 941-5395 or mrichards@davis.ca. Credit: Ollyy/Shutterstock FOREstRy < pg. 12 4-month paid internship an ideal Green Dream intern. Then the candidates had to take to social media to have their friends, families and others to vote for their application. e videos with the most votes were granted an interview for one of the seven open positions. It was a huge success — the con- test went viral with about 16,500 cast votes, close to 180,000 page views at thegreenestworkforce. ca and 170,299 YouTube views of e GreenestWorkforce videos. The winning candidates not only received a four-month paid summer internship, but also re- ceived an iPad mini to blog about their work experience in the forest industry. ey wrote about what it is like working in a forest community, what type of skills are required to perform the tasks assigned to them, what sort of education and skills the industry is looking for and what makes the sector a place to consider a career. With the success of the first contest, running a second contest seemed the obvious choice. Another social media contest ran this year, with 14 internships on offer. The internship posi- tions included human resources, chemical, mechanical or electrical engineering, forest management specialists, and communications personnel. In total, more than one million Canadians participated in the contest in some form— voting, sharing or applying — and helped spread the message that the Ca- nadian forest products industry is hiring again. Career possibilities Many of the students who ap- plied did not even realize their chosen field of study was relevant within the sector. Students in chemical engineering, industrial engineering, communications and business development hadn't recognized that their education, expertise and skills were even re- motely tied to the opportunities available in the forest products industry. "ese student positions give us the opportunity to experi- ence an industry setting before we graduate from our respective universities. If it wasn't for these opportunities, many of us would graduate with our degrees with- out any idea of what our career would actually entail," says Rob- ert Silliker, summer 2014 Green Dream intern chemical engineer at AV Nackawic. Monica Bailey is director of communi- cations at the Forest Products Associa- tion of Canada in Ottawa. e blogs written by the Green Dream interns can be found at www.thegreenest- workforce.ca/index.php/blog.

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