[Mary] My name is Mary Conquest. I'm your host for Safety Labs, the podcast where we explore the human side of safety to support safety professionals. We move past regulations and reportables to talk about the core skills of safety leadership: empathy, influence, trust, rapport. In other words, the soft skills that help you do the hard stuff. This podcast is created by Safety Products Global, the world's leading manufacturer of safety knives.
Hi there. Welcome to Safety Labs. Workplace harassment, bullying, violence, and toxic environments are certainly being discussed more than they were, say, 20 years ago. But have we made much progress in the realm of investigating harassment claims? And if not, why not?
We'll discuss that and other questions today with our guest, Dave Rebbitt. Dave is the owner of Rarebit Consulting, based in Calgary, Alberta. He's one of Canada's best known and respected HSE professionals, a top five global influencer with a career in safety spanning over 30 years. On safety, he's also the most published author in Canada, authoring dozens of blogs and peer-reviewed articles.
His writing is award winning and his book, Harassment and Workplace Violence Investigations, continues to be a bestseller. Dave also continues to serve on public and nonprofit boards. He's a military veteran, and in his spare time, he writes science fiction novels. Dave joins us from Calgary. Welcome.
[Dave] Good morning. Thanks for having me.
[Mary] So, why did you decide to write a book on the subject of workplace harassment investigations?
[Dave] Well, there were a couple of very good reasons for that. I guess when the legislation started to change, in 2020 and later on, and it kind of went in a wave across Canada, I said, "Well, they're writing this new hazard into the health and safety legislation." And when it came to things like harassment, that was generally under the purview of HR. And I thought, well, if this is going to be in there, obviously health and safety people are going to get asked, "What are we doing with this? What are the hazard controls? What if we investigate? We already have an incident investigation system. Shouldn't we be able to use that?"
And it just became really apparent to me there wasn't a lot of guidance. So I actually went looking and said, "Is there any books that are available to just provide guidance and say, look, this is what you should be doing?" And so I started looking into that. Now, previously in cases of harassment, normally there was what I would call a kind of a risk analysis that would happen within an organization. Someone would complain to HR, HR would look at the complaint and say, "If this is true, we're going to have a real problem," or, "We have a real problem. How do we manage that risk?"
And normally the outcome of that was somebody signed a non-disclosure agreement and got a check and went away. But this is a different world we live in now. So, I did find a bit of guidance around doing these kinds of investigations, but I quickly realized that it really wasn't great, I guess.
And so I started researching a lot of case law, because really the courts are the ones that tell us what is and is not going to be acceptable. And that's what really started to lead to me saying, "I should write this book. I should put something out there." Not because I'm a lawyer, not because I'm trying to give people legal advice, but really, and that's why the subtitle of the book is "A Practical Guide." How do you go about doing this in a way that is going to be effective?
Because you don't have to read too much case law to realize there's been a lot of horrific errors made in terms of investigating. And I also realized that most people, the vast majority I think, of people who might get asked to do a harassment or workplace violence investigation were woefully underqualified and really underinformed when it came to something like that.
So, if I thought I could get out some kind of practical guide that would be helpful to people that had been asked to conduct an investigation, because often people have a hard time saying no when they should. I mean, any professional should say, "That's outside of my skill set. I can't do that. I can't help you with that." But most people are likely to say, "Well, I think I could do that. Let me get back to you," or, "I'm going to look into how I go about that." So, that's really how the book came about. It took two years of research and writing to get to a first edition.
[Mary] So you mentioned something that I wanted to ask about, and that is these sort of overlapping or confused jurisdictions. So I'm wondering if harassment can proliferate basically because there's confusion. It's like, is this a health and safety issue? Is it an HR issue? Is it a PR issue? Is it a criminal issue? And of course, I realize some of them overlap. But do you think that confusion allows harassment to continue sometimes when it shouldn't?
[Dave] Yeah, I think that's a huge problem, because most organizations are set up to put the onus on the employee to make some kind of a complaint in writing. So, you often hear about situations where somebody says, "This is terrible. Look at this, this has happened to me." And the reply from the employer is, "Well, no one told us. We don't know anything about an issue."
And I think that's part of the change that's really come about. And companies have been slow to change. But employers have a responsibility not only to deal with complaints, but also to deal with situations where they see that someone's crossing a line. And there have been cases where employers have done that and successfully defended doing that in court, investigating even though there's no complaint.
And I guess in the past the default was always, "Well, everything's fine because no one's complained." It's just like we in health and safety say, "Well, everything's safe because there's been no incidents." That doesn't mean there isn't a hazard out there. That doesn't mean someone isn't being harassed. And part of my research, I looked at what can you expect in a normal sort of average company, not a small employer of thirty, but someone with two hundred, a thousand, five thousand employees.
And the statistics are fairly stark. Really, it's around 20% of people, if you surveyed them, if you asked them, "Have you been harassed in the past 12 months?" they would say yes. Normally, of course, you would have to explain to them first, "Well, this is harassment and this isn't," because you don't want to get a false answer. But a lot of companies are still on that page where we're going to wait until someone complains. But by the time someone's complained, things have already gone way too far.
[Mary] Yeah, true, because people are unlikely to complain about something that's just a little bit not quite right, and or to say anything until things are clearly bad. I'm curious, like, health and safety professionals are of course used to investigating workplace incidents, accidents, and events, that sort of thing. But you differentiate in the book between administrative investigations and traditional safety investigations. So what is important to understand about the difference as it relates to workplace harassment?
[Dave] I think, we'll talk about health and safety investigations first. That's predicated on an incident occurring that has caused some kind of damage or an injury, or maybe there's a near miss that almost caused that, and someone reporting it. So, you get the report and then there's an investigation. Now the investigation is very much focused on, "Why did this happen? What was the error or the gap in the safety system that allowed this to happen?" And you look for causal chains, like an immediate or proximate cause where that's directly related.
We could use the example of the wet floor. Someone slipped because the floor was wet. That's the immediate cause. The underlying causes are, well, because somebody came and mopped that floor and thought it was okay to leave it wet, even though it was during the day and they knew people would be walking on it, and they thought that the yellow sign would be adequate. So, you kind of try and understand, well, what really allowed this incident to occur? And then of course there's some kind of recommendations to address the gaps in the health and safety system, try and close the gaps so that something like that can't happen again. So we're really focused on understanding the why.
In an administrative investigation, it is much different. Because where a health and safety investigation, you're looking for corrective actions and you basically have a free-form sort of thing, in administrative investigations, there is a lot of legal case law and there are a lot of legal requirements that need to be met. So you have to pay attention to those. But the administrative investigation doesn't necessarily require that there be a written complaint or there's been something that has occurred. So it's different right off the bat.
And of course, when you're starting an administrative investigation, really the initial work is to get a clear complaint, because you have to parse out some allegations from that. So you're really focused in those investigations on what happened. Is what's being described something that actually happened? That is really the purpose of the investigation. You establish what happened, and then you compare it to, "Does this violate the legal standard? Does this violate company policy? Or is it just unethical?" Unethical may not necessarily be harassment.
So you can use the same tools and they sound like a very similar process. I think in some ways they are because in both cases, the most important part of the investigation is the interviewing. And the interviewing skills of the investigator are really important.
So when you're doing these administrative investigations, you have to observe procedural fairness as laid out by the Supreme Court. But you are really looking to establish, did whatever the complainant described actually occur? And if it did occur, does that rise to the level of harassment? And are there any mitigating or aggravating factors? And when you make recommendations in an administrative investigation, you're not looking for corrective actions at all. That's inappropriate. Most of the time in these investigations, recommendations revolve around, "You should review your process, maybe update it or revise your process." But in terms of what should be done with the findings, that is outside the scope of the investigation.
[Mary] So if we have some OHS professionals listening to this and feeling a little bit nervous about it, like, you're talking about legal issues, and I realize you're not giving legal advice. But many of our listeners are in different countries. And so would your advice be then to just familiarize, like, go to the legal department and familiarize yourself with the thresholds of what constitutes harassment and that sort of thing?
[Dave] Well, I think most countries follow the English common law. And really, when I say legal terms like procedural fairness, really what that means is that your procedure is balanced and fair and transparent. So even when I take on an investigation, one of the first things I'll ask the employer for is, "I need a copy of your policy and procedures. I need to see what it is that you are communicating to employees."
Because that helps me understand what they expect. And then often, of course, these procedures or policies are not very detailed, not very transparent, which means that the people involved, complainant and respondent, really have no idea what to expect.
But it is important to check in. I think, if you're not familiar, in the book I kind of segregate the cases into simple and complex. In a simple case, things can be pretty straightforward. And by simple I mean someone used a racial slur, someone called someone a name, somebody was not cooperating with somebody or not giving them what they needed to do their task and just trying to be unkind, I suppose, or uncivil. Those are fairly straightforward.
But as the investigator, you owe a duty to all parties. So you have to be really upfront with the complainant and say, "Look, this is a confidential process, but I can't keep what you say confidential because I have to share that with the person who's responding to the complaint." And the same with the respondent. "I'm going to give you clear allegations and allow you time to think about that and to respond in a fulsome manner so that you can also have your say."
And then you go on the second round, because whatever the respondent says, you have to go back to the complainant and say, "Look, this is what the respondent's saying. You have to have an opportunity to respond to that." And of course, you're identifying witnesses. So, although there's legal terms and there are legal duties involved, at least in Canada, really it's about being open and fair and transparent. And most companies do not have processes that are fair or transparent. And that's where difficulties really arise.
[Mary] I maybe should have started here, but I'm curious, is there a difference between bullying and harassment? And does that difference matter?
[Dave] Bullying and harassment, workplace violence, these are all terms used to describe uncivil behavior. In some jurisdictions they use those terms, but really, it's all the same. It's all the same thing. It really is. Sexual harassment, bullying, harassment, workplace violence, it is all the same thing. I just think some of these terms, if you read people doing research on toxic workplaces or uncivil workplaces, they often use the term harassment. They won't use the term workplace violence or bullying. But these terms have kind of come into common use. It really does describe the same thing. I think the British like to use the term uncivil behavior.
[Mary] Is it possible, and should we even try, to quantify in some way the harm caused by harassment? Like I know that that's what courts do, right? When there are complainants, there's often a financial settlement or that sort of thing. How can you calculate the harm done, given that, in my understanding, two different people could receive the same behavior and react very differently?
[Dave] Yeah, that's true. And quantifying, I guess I would say that the courts do what's legal. I don't think that you're going to get justice in the courts, really. I think the part that gets missed a lot in this is people who are receiving harassment. A lot of the burden in dealing with that, I mean, yes, it affects their mental health, it also affects their physical health.
And where do they end up? They end up in the health care system. And that cost is in the billions of dollars in Canada every year. Now, some of them will file workers' compensation claims. And workers' compensation boards, as you know, are in Canada provincial, so they have slightly different viewpoints on this. But those claims are very expensive claims. They're easily over six figures for a complex case.
And again, where do the workers' compensation boards source psychologists, psychiatrists, doctors? They're in the health care system. So the burden on the health care system is substantial. And you read about cases where people get tens of thousands of dollars or even hundreds of thousands of dollars in a settlement. Those cases are rare because there's still a practice of the non-disclosure agreement and a check, which can vary greatly depending on the employer.
There is a movement in Canada to try, and it's called "Can't Buy My Silence," led by a couple of lawyers. And Prince Edward Island has brought in legislation that provides that you cannot use a non-disclosure agreement in cases of harassment. And I think that's a bit of a double-edged sword.
[Mary] Why is that? Sorry, why is that a double-edged sword? It seems good.
[Dave] Because instead of settling, the employer saying, "We're going to settle this, we're going to cut a check, we're going to settle this," if they can't get the non-disclosure agreement, they may still choose to write out a check, maybe, or they may choose to fight. And if they choose to fight, that will further damage the person that's been harassed. That will further victimize that person.
So, it could lead to quicker and better settlements in some cases. And in other cases, the employer may choose to drag things out in the legal system for years and subject that individual to really agonizing torment.
[Mary] Yeah, and there's very unequal access to resources in terms of dragging out a court case, right? An individual versus a company.
[Dave] That's right. Obviously the company's got way more resources. And somebody in the company can just say, "Hey, I'm going to turn this over to our corporate counsel, our legal team, and they're going to take care of that. I'm never going to hear about it again." But the person on the receiving end, they're like, "I've got to pay for a lawyer. I've got to fight for this. Where is it going to end?"
[Mary] Yeah. So there's a discussion that I've noticed is starting to creep into, I guess, social consciousness, and that is differentiating between intent and impact. Do you think that — and I mean, that's to say, "Well, I did something that you consider uncivil, but I didn't mean it," or, "I thought it was a joke." I mean, that's a pretty common response. Do you think that's well understood? Do you think that's becoming more understood?
[Dave] No, I think there's a lot of that out there. People say, "Well, somebody complained and, but I didn't mean... fill in the blank. I didn't mean to offend them. I didn't mean anything by that." And I guess the jurisprudence on this, the courts are pretty clear. Your intent does not matter. If a reasonable person would have been offended, that's harassment.
Because a lot of times when you first interview a respondent, they're like, "Well, I didn't mean to offend them," or, "I didn't mean to insult them." Well, I understand that, but maybe you did. That's basically what it comes down to. And that's up to the investigator to determine. And that's why it's so important that investigators be qualified and competent and experienced, because if you make a finding in a report, and I see this all the time, which I find shocking, if you find that an allegation is valid, you have to explain your rationale. What evidence, what tools did you use to arrive at that conclusion? Because the respondent is entitled to an explanation.
And so intent doesn't matter because harassment is entirely in the eye of the beholder, and I guess it's up to the investigator to determine, is that reasonable? Now, when it comes to effect, again, doesn't matter. There are no degrees of harassment. There have been several court cases where this has become at issue. "Well, it was just a mild thing." That really figures into later, when somebody is deciding what to do with these findings.
Because the investigation is simply saying this allegation is valid, it's not valid, or there's no findings because the evidence does not support making a finding. So, it's not uncommon for there to be no finding. But it's also not uncommon for there to be at least a dozen allegations in even a fairly simple investigation. So intent, and people always run to that, "I didn't mean it." Well, that's understandable. Some people don't mean it. But how do you determine that? Is there a pattern here? This is where the investigator has to be curious and be good at interviewing, because some people are really good at hiding their actual intent.
[Mary] Yeah. And yes, acting shocked that, "Oh, I didn't know that it was unreasonable to take whatever action."
[Dave] Well, it's interesting. In some cases, respondents, when you first meet them, I guess some of them are mortified. They're absolutely shattered that somebody complained about them. "I didn't realize." And then there's some saying, "Well, I want to know what my rights are. I want to know exactly what's going on here. You have to tell me." So there's two ends of a spectrum there. But just because someone is all regretful doesn't mean that the allegation isn't true.
[Mary] What about if someone is, like, clearly, when you're investigating and someone is on the side of the spectrum of, "What are my rights?" or, "I dispute this, it's not correct," whatever. When you come to someone and they're like, "Oh, I'm so sorry." And I guess it's not your job to decide whether they're genuinely sorry or not. But is there room for some kind of reconciliation? Or — I hesitate to say justice — but, or is that just outside the purview?
[Dave] So, yeah. Well, sometimes the employer will, after an investigation, say, "Well, the respondent's going to write a written apology," or something, because they're so remorseful. That sometimes can figure into the mitigating factors. So, for instance, if someone is a supervisor and they've never received any kind of training or mentoring in being a supervisor, that can figure in, because sometimes people get promoted to be the supervisor and they feel that they have to be an authoritarian. And that really obviously is not going to work well with their former colleagues.
So, that certainly can come in, and it's up to the investigator to identify, is this a mitigating factor or is there an aggravating factor here? But at the end of the day, it doesn't matter how remorseful they are in terms of the investigation. It might matter to their employer how remorseful they are. But some people are very good at misleading. So the investigation has to be dispassionate and say, "These are the allegations. Are they valid or not valid, based on the evidence collected in interviews, documentary evidence, texts, emails?"
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And now back to the interview.
You have already touched on this briefly, but I wanted to dig in a little bit more. You mentioned in the book four different types of complaint, and I'd like to understand how they differ from each other. So, they were simple, complex, anonymous, and no complaint. Can you talk about how those differ from each other and maybe how they might demand a slightly different approach?
[Dave] Sure. The simple complaint, I said before, somebody mistreats somebody one time, they do something mean-spirited one time, or they call someone a name, or something like that. That is a very simple sort of case, because you're looking at maybe a single occurrence or a couple of occurrences. And in those instances, maybe an apology will suffice. In those instances, I like to say that the relationship in the workplace is salvageable. And you see those, and they are very straightforward.
However, then there's the complex case. And so these cases, you look at the complaint, it's ten pages long, it's so horrific you can't really believe that that would have happened. And so that gets complex. And this is where you're getting a large number of allegations that come out of that complaint. Complex cases can also be cases where you're looking at a senior manager being involved, either as the complainant or the respondent. And in these cases, this is going to affect someone's life. This is going to affect someone's livelihood.
So in these complex cases, that's where you really need an investigation that is going to withstand legal scrutiny. And it's not uncommon when I work with clients, when they debrief from the investigation, they'll have their lawyers sit in just to make sure that they feel it is legally defensible. And they really are at a spectrum. There isn't any "moderately complex." It's either pretty simple or complex.
[Mary] I would imagine, too, if there's more than one complainant, that would add quite a bit of complexity, like five different people complaining about...
[Dave] Yeah, you may start off with a simple complaint and then start interviewing witnesses and realize you're talking to another complainant or you're talking about another respondent. And so the investigation grows into a complex one. Absolutely. And a lot of times it's necessary to go back to, usually it's HR you're dealing with, and say, "Listen, I'm getting this information. It's of the same nature. Do you want me to investigate these additional allegations? Or are we just going to keep it going just with this one?"
And most of the time they'll say, "Well, if the allegations are of a substantively different nature, we should investigate those. But if they're of a similar nature, let's just get this one done and see where we go."
So complex: yeah, multiple respondents, multiple complainants, involving senior management, or if the allegations are rather salacious in nature, something that, whether it's true or not, could destroy someone's reputation. So confidentiality is obviously paramount there.
So that's the two, simple and complex. Then we get to anonymous. And over the years, even since I wrote the book, there's been a lot of cases through the courts about anonymous complaints. And the courts say uniformly the same thing: you cannot investigate an anonymous complaint. If someone isn't going to sign their name to it, you can't investigate it, because the respondent has the right to know who is complaining about them and what it is they're saying.
So if the complainant wishes to remain anonymous, then the employer's hands are somewhat shackled. And I say somewhat shackled because in an anonymous complaint, there may be information contained within that complaint that may lead the employer to believe that something is going on. Now, if the employer has enough information from the anonymous complaint, the employer can absolutely conduct an investigation.
So that brings us to the no complaint side. There's no complaint, but a supervisor or a manager believes that there may be harassment happening. And they may have some evidence, some third-hand sort of evidence, maybe. They may have seen a few things themselves, or they're just not sure what's going on, and they believe that an investigation should be warranted.
So, in much the case of the anonymous complaint, with no complaint, it really rests on the employer to say, "We have good reason to believe that there is something uncivil, there is something nasty going on. And so we want to investigate to make sure, because as the employer, we have a duty to make sure the workplace is safe."
And there have been cases where employers have embarked upon an investigation. And of course, the employer would not go to the respondent or respondents and say, "Look, there's been an anonymous complaint." They say, "We have concerns because we've seen these things. We want to find out if these things are harassment."
So you can't just suddenly say, "I've decided to investigate this person because I don't like them." There has to be a basis for investigation. And that can be a lot of things. That can be comments being made directly to a supervisor, so it's not hearsay, it's not third hand, these are direct conversations. It can be that that department has a much higher turnover, and so you think, "Well, there might be something going on with one of the supervisors or the manager."
So yes, you can absolutely conduct an investigation, but there must be a basis for that investigation. And that's a little bit of a strange way to go about an investigation, because you really have to treat all of the employees, if you think the employees are being harassed, for example, you would have to treat all of them basically as a complainant and interview them and ask them, "Has this happened to you?"
And again, you could do a survey. You could do a survey in the department and ask people, "This is what harassment is. Have you seen this? Have you experienced this?" Even if it's anonymous, it'll help you point your finger at where the problem is. So, as I think we were saying earlier, you as a responsible employer, you shouldn't be waiting for someone to complain because the signs are always there before someone does.
[Mary] So, infamously, in a case of harassment or bullying, the investigator — it's unlikely that the incident was witnessed, certainly by the investigator, maybe by anyone else outside the two people involved. How should an investigator go about validating a complaint when they didn't witness the incident?
[Dave] Well, that is a key part of these sorts of investigations. Call it assessing the credibility of the witnesses, the complainant, and the respondent. And it sounds difficult, but actually usually — I would say sometimes it is extremely difficult. And so in those cases you may say there's no finding. But usually you can parse that out, because you have allegations that you are investigating as the scope of the investigation.
And if there's things that just occurred and no one saw, it was a closed meeting or something, you would talk to employees and say, "Well, did you see the people when they came out of that meeting? Did you see this person? How did they feel? How did they look?" And you can look for the effect of what the complainant is describing.
And often, when people are being interviewed, if someone has done something that they shouldn't have, they will either be very close-mouthed and refuse to delve into that, or they'll make up a narrative. But their narrative will be about moments in time. It won't be what I call a complete narrative. So if you talk to the complainant and it has this chunky feel to the narrative, well, there's things missing there. They're not telling me the whole story. Because they're basically looking for gaps that they can squeeze out through.
So when you're interviewing people, it is really important to be assessing their credibility at the same time. So after an interview, usually I make notes about the credibility of the person I just interviewed. Did they answer the question? Because in a lot of cases, that is a great tip-off. It's like when you talk to a politician: you ask them a question and they talk about something else entirely. If someone does that in a harassment investigation, that's a big red flag.
And then if you pull them back and say, "Well, with respect, I don't think you answered my question. What I asked was..." and if they do it again, well, that really speaks to their credibility. Are they trying to cooperate with the investigation? Do they want to get to the bottom of this? Do they feel like they're going to be exonerated? Or on the complainant side, are they trying to manipulate the situation to get to an end game? Because that does happen. It's somewhat rare, but it does happen.
So, assessing credibility is really important. And I can tell you, when we talk about interviewing people, a lot of people talk about body language. And I can tell you that that is completely not a good way to assess credibility. Absolutely not. Because body language varies by culture. And if you're within your own ethnic group and you understand the body language, well, great, but if you're not, you don't.
And there was a study done by a legal institution that said judges get that right 50% of the time. And you think judges would be pretty good at judging character and credibility, but they get that wrong 50% of the time because they don't get to ask questions, right?
So, just because — and I hear this all the time — "Oh, it's a he said, she said," or "he said, he said." Yeah, so what? It is possible, because these investigations are done with findings on the balance of probability. All things considered, this version of events is the most likely to be true. Is it 100%? Well, no. But it's close enough, because as I said before, you usually have multiple allegations. And frankly, in a harassment investigation, when you get to the part where you're doing a harassment investigation, the chances of having no findings on all the allegations is quite rare.
[Mary] That's interesting. As you were saying that, I was thinking, different cultures have very different ideas of what's appropriate eye contact. And I have heard people say, "Oh, so-and-so won't look me in the eye." Well, that doesn't necessarily mean anything.
In terms of investigative methodology, and I think probably interview in particular, because you're talking about how important that skill is, what do HSE professionals often get wrong?
[Dave] I think one of the biggest things I see that any investigator gets wrong is there's a huge focus on the complainant. There's a huge focus on the complainant and they forget that the respondent has rights and the respondent is innocent.
And so, investigators are saying, "Okay, we're going to interview the complainant. We're going to make sure we get all this information." But meanwhile, while you're doing that, the respondent's already been informed they're being investigated. And that's usually it. They don't know anything.
Usually when I'm engaged to conduct an investigation, I have whoever I'm dealing with contact these parties and say, "Look, we have an investigator, they'll be contacting you." And I usually send them a letter saying, "I'm the investigator. I want to set up an interview." And in the letter to the respondent, I say, "I'm going to interview the person who's complaining. I will meet with you. But before I meet with you, I will give you the allegations in writing. I will give you time to think about those allegations, to respond to those allegations when we meet."
And so the process that you can expect is, it's going to take a bit of time to solidify the complaint, I suppose, and to interview the complainant. But when that's done, I will give you this information. And at the interview, I always explain to them, "This is the process that we're going to follow." Once I interview the respondent, then I'm going to interview the witnesses that have been identified. I'm going to go back and interview the complainant so they can respond to whatever the respondent had to say. And I'm going to go back to the respondent again and say, "Well, the complainant said this, or the witnesses said that. How do you respond?"
So that they really get their opportunity to be heard, to respond to these allegations, and they can be satisfied that they got their time to do that.
And I think in some cases what happens — I call it that in my book, I call it "ambushing" — and it's very common, unfortunately. The respondent hasn't been told there's an investigation, gets called to a meeting, gets confronted by allegations, and then browbeat into explaining themselves. That's a fundamental violation of their rights. That is completely unfair. And I see that a lot.
So, respecting the respondent and the respondent's rights and making sure you are balanced, you're running a balanced investigation. And even at the end, there's a practice which I really don't agree with, where I would provide my report to the organization and in some cases, they will not give a copy of that report to the respondent, particularly if there's a finding that there was harassment. And I think that's absolutely unfair.
I mean, they can redact it if they want, or they can just give the section that deals with findings to the respondent. But in my view, they have a right to know what the findings were and how they were arrived at. Which is why you always structure the report to say, "Well, here is the allegation. Is it valid? Not valid?" And then, what's the definition? What is the bar we're using to make the determination? And then have a rationale. How did this decision get arrived at? Why is this valid or why is it not valid?
And of course, because the focus in a lot of these investigations tends to be on the complainant, the respondent can be cast adrift. So if the investigation is taking weeks or months, there must be a mechanism for the complainant and the respondent or respondents to get an update and say, "Well, this is where we are with the investigation." Because they're waiting for it to be over. Once they've been interviewed, that's really it — they're waiting for it to be over. And it can be a really agonizing wait for everybody as these investigations drag on and drag on.
So, there has to be a way to keep them in the loop and keep them informed. And then let them know, "Hey, we're done. All the interviews are done, all the evidence gathering, you can expect the report within two weeks or three weeks." So that they know that. And of course, by pinging them during the investigation, it's completely appropriate for them to share information. Sometimes they would share hearsay, which, really, you can't do much with that. But sometimes they will say, "Well, I remembered I have this email," or, "I remembered that there was this bulletin sent out and I wanted you to see that." And sure, if it's related to the investigation, the investigator has to consider all evidence that is posed to them.
[Mary] Is there a best practice, or maybe it's a case-by-case thing, as to whether this kind of investigation should be done internally or with an external party?
[Dave] Well, I guess there's a disconcerting trend going on because HR used to deal with this all the time, and usually HR is still in the mix or they're dealing with it outright. Simple cases, if you have some training or some guidance, you could probably do that. But the most important qualification for being an investigator is experience. You can take all the courses you want. But if you don't have experience, you are playing with fire.
So a lot of HR people go on a course and think they're an investigator. And I think that's really unfortunate. And I'm not saying that health and safety people make the best investigators. They're probably the only ones in an organization that's had any investigation training. But I have seen cases where health and safety managers have completely messed up an investigation, or former police officers, HR professionals, and even lawyers.
So there are no guarantees. I would say that if it's simple and you want to try and attempt it yourself, make sure you have some appropriate guidance. And I do mean more than the procedures the company has. If it's complex, you should think about an external investigator, unless there is someone in the organization that you feel is going to do a really credible job.
And some organizations turn to their legal counsel and say, "Hey, you should investigate this for us." Well, that's an expensive way to make a mistake, because not every lawyer is a good investigator.
It is because it's still fairly new, finding a good investigator is not easy. I mean, there's a lot of people like me, I'm a consultant, I do investigations. But if you talk to five different consultants, one of them might actually be a good investigator and the other ones are just blowing smoke. That's one of the things that pushed me to write the book, because I've seen so many shoddy investigations. And it's so unnecessary, because a messy investigation damages everybody and everything.
And that's where you see some of these court cases where these huge damage awards, or companies are fighting with this huge workers' compensation claim because they didn't do the right things and the simple things at the start. I talk a bit about that in my book, How to Select an Investigator, if you're going to do that. And I think that would even apply to an internal investigator. Don't think because someone's a health and safety professional or an HR professional, that they are going to be a good investigator. That's not necessarily the case.
[Mary] How can an investigator — I mean, we're all human — how can an investigator shield against their own potential biases?
[Dave] That's tough. And it really means, especially when analyzing the evidence, pausing and saying, "Is this reasonable? Is this factual? Is this supported by actual evidence that I have collected?" Because everybody has this rationalization mechanism built right into their brain to rationalize all kinds of things. So you really do have to be very, very evidence-focused.
And that's why it takes a while to write a report, because you may lay out in the report the methodology of the investigation and what people had to say in interviews. But when you're thinking about the actual allegations and the findings, I always kind of write those — I don't write them all on the same day. And I'll go back and read them and say, "Is this defensible? Like, if I was the respondent and I was really mad and I'm reading this, are there any holes in the logic here? Are there any leaps of faith unsupported by evidence?"
Because yes, we are all human and we all have our biases. And so, being an unbiased investigator, it is always a challenge. And in very complex investigations, it is not uncommon for there to be a pair of investigators, because you've got to get this right. You want to make sure it's right. And if this is going to end up in a courtroom and be examined by a judge and be examined by attorneys looking for holes, you want to make sure you get it right.
And I always say, you owe that to both parties. You owe a competent investigation to the complainant, and you owe an explanation of any findings and the logic behind those findings to the respondent.
[Mary] Over the course — so you said it took you two years to research and write — over the course of that process, did you learn anything new or did your perspective change in any way?
[Dave] Yeah, I think I did. I was surprised by the number of cases. I was surprised by how really bad some of these things were and how companies often would just say — you would call it confirmation bias — "We think it's this." And so that's what it's going to be at the outset.
I mean, I've talked to potential clients and they're like, "Well, we think this and we think that, and we need you to do this and that." And I'm like, "No. I'm going to investigate. And this is the method. We have to have clear allegations, talk to the respondent." And they're like, "Yeah, yeah, yeah." And so I ask them, "Well, what will you do if I find there is no harassment?" And sometimes they come back and say, "Well, that's not going to happen." Well, you need to prepare yourself for that eventuality, because that can happen. And what will you do then?
Because if you're an external investigator, when you show up, there's stuff the company is not going to tell you. They just either forget or they don't want to tell you. So you really have to be curious and be aware that you're going to have moments of confirmation bias. You're going to have moments of all kinds of bias, because when you read the complaint, your amazing brain will tell you who the bad guy is. Your amazing brain will tell you what happened. But none of that's true.
And so you really need to have some emotional intelligence and guard against that. And of course, the other way you can guard against that, I think, is as an external investigator, when you're presenting your report, that's the draft report. And so you can encourage your client to challenge any assumptions that they see, to challenge any non-factual statements that they see, to make sure that it is tight, to make sure they understand. Because it's been my experience that clients will not always agree with the findings and will challenge them. And so you have to defend your findings, which is a healthy exercise to help you make sure that there is not bias in your report.
[Mary] So, if we have listeners who are curious about maybe learning more or getting better at investigations, if you had one sort of piece of actionable advice for them, where do you think they should start in that journey? Of course you don't know where they are, but, like, what's a good direction?
[Dave] Well, I think most jurisdictions have some kind of investigation license. And I'm not going to say that the investigation license I had covers anything to do with harassment, because it doesn't. I got my investigator's license and I still maintain it as part of the research for my book. But what that does do is make you aware of the law around recording conversations, around interviewing people. It makes you aware of the fact that you really don't have any authority to do or enforce anything and you can't force people to be part of an investigation. Certainly, that's not your job as the investigator. So that's kind of a good place to start.
And there are books. There are courses that you can take on investigating or interviewing to try and understand. I think the most important thing is to understand the methodology of the investigation. And I always tell people, if you're going to hire an investigator, ask them what their methodology is, because you will soon realize who is and who is not a good investigator.
So it's about doing research, because there is no place you can go to get investigator training on harassment and get the experience necessary. Some organizations get someone trained up and then they'll do simple cases, to kind of cut their teeth, to get into, "This is how these investigations work. This is what I'm supposed to do. This is what the report should look like." And maybe after they've done some of those, they might be up to try a complex one.
But most organizations don't have any embedded sort of expertise in harassment, even though it's everywhere. So, you need a good investigator, but where do you get one? Well, in a lot of cases, you have to build that capability. And whether that's an HR person or a health and safety person within an organization, I've actually written an article about that. I haven't published it yet, but HR often takes the whole thing on, especially in large organizations. And I think that's kind of a mistake. It should be an interdisciplinary sort of activity.
Because if HR is going to accept the complaint, then having someone else investigate and then HR come back in and receive the report and take action, I think that's better from an organizational perspective. Because you don't have to look too far to hear people complaining that HR is judge, jury, and executioner, that there's no balanced approach. And why not leverage those resources within the company where someone has some experience on investigations? And of course, HR is riding herd — they can make sure that the investigation is solid.
So, it is about developing capability within the organization. And that starts with having a good investigation methodology and having a clear and balanced process that is in writing for all to see.
[Mary] Okay. Well, if our listeners want to learn more from you, where can they find you on the web?
[Dave] You can find me on my website, of course, rarebit.ca. I'm on LinkedIn, of course, and with a last name like Rebbitt, I'm not hard to find. All of my books are available on Amazon, and the one on workplace violence and harassment investigations remains a bestseller.
[Mary] And for those who are watching, this is what it looks like. Well, that's all the time we have for today. So thank you, Dave, for joining me.
[Dave] Thank you. It was a pleasure.
[Mary] And thanks again to our listeners who support us and the Safety Labs team who are working behind the scenes. Bye for now.
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