Investigation Guide for the Policy on Harassment Prevention and Resolution and Directive on the Harassment Complaint Process

1.1 Purpose

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 guide will also assist the parties in understanding the investigative process by:

1. Clarifying the role and responsibilities of investigators in conducting a thorough, timely, sensitive, and discreet investigation which includes:
   • Preparing an effective plan for identifying and collecting information;
   • Analyzing and summarizing the information and evidence obtained from interviews and pertinent documentation; and
   • Preparing a clear and concise preliminary summary of facts and an investigation report.
2. Providing suggestions and standards of practice for each step in the investigative process; and
3. Providing investigative and reporting tools.

1.2 Responsibility and Authority

The Policy provides that the ultimate responsibility and authority for preventing and addressing harassment in the workplace rest with the Deputy Head and that person’s designated official(s).

Harassment investigators are expected to meet the Competencies Profile for Harassment Investigators which can be obtained from the Treasury Board Secretariat (TBS) website.

1.3 The Investigation Process

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.

There can be several participants in the investigation process. This includes complainants, respondents and witnesses. During the investigation all parties are expected to co-operate in the complaint process if and when called upon to do so.

Discussion of all aspects pertaining to the complaint should be limited to those who need to know in order to minimize damage to the work environment.

An overview of the administrative investigation process is provided below. Each element of the process is described in greater detail throughout this Guide.

• Stage One: Selecting and Mandating the Investigator
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• Stage Two: Planning the Investigation - Preparing the file
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• Stage Three: Conducting the Investigation – Establishing the facts
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• Stage Four: Validating the facts - Preliminary Summary of Facts
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• Stage Five: Analysis and Conclusion
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• Stage Six: Report
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• Stage Seven: Administrative Closure

Stage One: Selecting and Mandating the Investigator

Stage Two: Planning the Investigation

The approach presented in the following section is intended to help ensure the application of the principles of procedural fairness for the parties involved in the investigation. It includes criteria and guidance to help the investigator and the person responsible for managing the harassment complaint process.

Prior to the commencement of the investigation, the investigator should confirm with the person responsible for managing the harassment complaint process whether the parties understand their rights and responsibilities, including their right to be accompanied during the investigation process.

Stage Three: Conducting the Investigation

Stage Four: Validating the Facts

Stage Five: Analysis and Conclusion

Stage Six: The Investigation Report

Stage Seven: Administrative Closure

I. Purpose of this Mandate

The purpose of this investigation mandate is to:

1. Establish the terms and conditions in accordance with which this investigation is to be conducted; and
2. Outline the authorities of the investigator to interview the parties and witnesses, and to view and collect any information or documents needed for this purpose.

II. Allegation(s) to be Investigated

Investigation of harassment allegation(s) by [name of the complainant] in regard to harassment allegedly committed by [name of the respondent].

The allegations to be investigated are attached to this mandate.

III. Scope of the Investigation;

[Subject to the provisions in the professional services contract], the investigator shall conduct the investigation of the allegation(s) attached to this mandate.

The investigator will investigate to determine whether there has been a breach of the Treasury Board Policy on Harassment Prevention and Resolution in accordance with the Directive on the Harassment Complaint Process and the accompanying Investigation Guide.

The investigator will conduct the investigation in accordance with the principles of procedural fairness while using his or her discretionary power to conduct the investigation in the manner deemed most appropriate.

The investigator will limit the investigation to the allegations referred by the person responsible for managing the harassment complaint process. In the event that additional allegations are raised during the course of the investigation, such allegations are to be submitted to the person responsible for managing the harassment complaint process to determine whether they should be considered as part of the mandate for the investigation. If these allegations are accepted as part of the investigation, they are to be presented in writing by the person responsible for managing the harassment complaint process to the respondent and the investigator’s mandate will be amended accordingly.

IV. Investigation Process

The investigator will review the allegations attached hereto and any additional allegations accepted by the person responsible for managing the harassment complaint process to ensure that all relevant documentation has been identified. The investigator will also review all documentation and responses, as applicable. He or she will then submit an investigation plan to the person responsible for managing the harassment complaint process.

The person responsible for managing the harassment complaint process may designate a person of his or her choosing (such as a departmental harassment advisor) to assist with the administrative aspect of the investigation such as assisting the investigator in arranging interview schedules and meeting locations. The investigator will ensure that the parties have been notified of their right to be accompanied during the investigation process and of the importance of maintaining confidentiality.

The investigator will provide the parties and witnesses with the opportunity to be heard and conduct all interviews in a fair, impartial and professional manner. He or she will ensure that witnesses are asked to sign and date witness statements once they have had an opportunity to review the interview notes to confirm their accuracy.

The investigator will take every reasonable precaution to ensure that the investigative process is carried out with due diligence and respect for the rights of those being interviewed and to perform these duties within the confines of the law.

The investigator will inform the person responsible for managing the harassment complaint process in the event that the parties, the persons accompanying them or the witnesses do not fully cooperate in or jeopardize the process.

V. Reporting:

The investigator will provide the person responsible for managing the harassment complaint process verbal progress reports on the status of the investigation at regular intervals or at the request of the person responsible for managing the harassment complaint process to allow him or her to monitor the timeliness of the process and to ensure that the mandate is being adhered to.

Upon completion of the initial interview phase, the investigator will submit a preliminary summary of facts outlining the evidence and the facts of the case to the person responsible for managing the harassment complaint process.

He or she will then provide the parties with a copy of the preliminary summary of facts, once they have been reviewed by the organization to ensure adherence to the Access to Information Act and the Privacy Act, and provide them with an opportunity to make comments regarding accuracy and completeness and to provide additional relevant information.

The investigator will examine all the information submitted by the parties as well as the other evidence gathered during the investigation. He or she will provide a thorough analysis of the evidence in the investigation report.

The investigator will use the criteria contained in the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process, in order to conclude whether there has been a breach of the Policy by establishing whether:

• The allegations are founded in whole or in part; or
• The allegations are not founded.

The investigator will submit the investigation report to the person responsible for managing the harassment complaint process in a timely manner. He or she will complete the investigation report even if the parties or witnesses refuse to cooperate in the investigation process and shall indicate the reason, if any, for such refusal. If applicable, the investigator’s report will also include the reasons for which a witness proposed by either of the parties was not interviewed.

Copies of the investigation report will be provided to the parties, by the person responsible for managing the harassment complaint process once the report has been reviewed by the organization to ensure adherence to the Access to Information Act and the Privacy Act.

A final decision to accept or not the conclusions of the report will be made by the person responsible for managing the harassment complaint process based on the findings of the investigation report.

VI. Additional Requirements

(Optional: The following paragraphs can be inserted and amended based on the specific needs of the organization)

The investigator will also make a determination on whether the allegations are vexatious or made in bad faith. The investigator will also comment on underlying workplace factors that may have contributed to the situation.

VII. Documentation

Supporting documentation and relevant submissions collected by the investigator will be included and clearly identified as an Appendix to the investigation report.

At the conclusion of the investigation, the investigator will submit the investigation file including all information and documentation collected in the course of the investigation to the person responsible for managing the harassment complaint process.

VIII. Confidentiality and Disclosure

The investigator shall conduct the investigation with the utmost discretion.

The investigator will take every reasonable precaution to safeguard, secure and protect all information, documentation and materials that may come into his or her possession while investigating the allegations.

The person responsible for managing the harassment complaint process will ensure in advance that the parties and witnesses are provided with a copy of the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process, and are advised of their rights and responsibilities with respect to the investigation, particularly attendance at interviews, accompaniment and confidentiality.

The investigator cannot guarantee the parties or witnesses that conversations or information communicated during the course of the investigation will remain confidential. Anyone interviewed during the investigation must be informed that his or her name will appear in the investigator’s report and that the information provided may be disclosed in the investigation report.

The investigator must compile and communicate all information in compliance with the Privacy Act and the Access to Information Act.

IX. Informal Resolution Process

If a request for informal resolution such as mediation is made by one of the parties, the investigator will inform the person responsible for managing the harassment complaint process. If an informal resolution process is commenced to resolve the allegations, the investigation will be suspended by the person responsible for managing the harassment complaint process.

The investigator shall not participate, under any circumstances, in the informal conflict resolution process or attempt to obtain or use information disclosed in the context of an informal resolution process if the investigation resumes.

If the parties do not expeditiously resolve the situation through informal resolution, the person responsible for managing the harassment complaint process will inform the investigator that the investigation will resume. If the parties resolve the situation informally, the investigation will be terminated and all documentation will be returned to the person responsible for managing the harassment complaint process.

X. Timeframes:

It is recognized by all parties that this Mandate may be terminated or extended at any time at the direction of the person responsible for managing the harassment complaint process.

The investigation report will be submitted to the person responsible for managing the harassment complaint process on a date not later than [date].

In Witness Whereof this mandate is accepted and signed, at [city], this [day] day of the month of [month] [20 ].

[Person Responsible for Managing the Harassment Complaint Process]

[Investigator(s)]

Definition of the Subject(s)/Issues

• What are the allegations?
• Are there any other questions or points that require clarification?

The Required Elements for Determining a Breach of the Policy

• What elements must be proven to determine that there has been a breach of the Policy?

Logistics

• Where will the interviews be conducted?
• Are there any special accommodations required?

Information Critical to the Investigation

• What documents or records will need to be examined?
• Which witnesses or experts will need to be questioned?
• What is their relevance to the allegations?
• In what order will they be questioned?
• What policies and/or directives will need to be reviewed?

Key Areas of Inquiry

• How will the questions be tailored to each specific event or subject?
• What extent of questioning will be required to determine a particular issue?
• What issues will be likely to require follow-up depending on the answers given?

Order in which the Information Should be Obtained

• In what order should the information be gathered?
• Should some records be reviewed before certain witnesses are questioned?
• Should some witnesses be interviewed before others?

Introduction

Questioning the parties and witnesses in a harassment situation is a sensitive task. There is an enormous amount of emotion involved; some interviewees may be quite uncooperative, others aggressive. In the absence of familiarity with the person who will be interviewed, the investigator should be cautious and try to anticipate a wide array of possible reactions during the interview. It is imperative that the investigator demonstrate objectivity throughout the interview. The most successful interviews entail gaining the trust of the person being interviewed. The investigator should attempt, as much as possible, to establish a climate of trust as early as possible in the interview. Preparation is key and these interviewing tips are meant to help prepare the investigator.

Throughout the investigation process, the investigator must ensure that procedural fairness is respected and refrain from behaving in a way that could be seen to jeopardize that notion. The role of the investigator is to review the matter in an objective manner. He or she must be prepared to consider all of the versions of the events giving rise to the allegations. At the same time, it is important to consider how the parties and witnesses presented their version of events because their approach and demeanour may affect the way that information is interpreted.

Six Key Questions

Establishing facts is contingent upon obtaining responses to six key questions:

Who? What? Where When? Why? How?

In order for the investigator to be in the best position to answer those questions, he or she should develop a plan that can be used to guide and simplify the interview process. In doing so, it is important to determine beforehand:

• The date, time and place for the interviews;
• The order in which the parties and witnesses will be questioned;
• The questions and the order in which the investigator will ask them for each interview; and
• How much time the investigator intends to allow for each interview so that he or she can prepare a schedule accordingly.

It is important to keep in mind that the plan is only a guide and it is far more important for the investigator to be able to adapt his or her questions or approach as the interview unfolds. For example, a new or unexpected piece of information can shed new light on the situation and may warrant a shift in direction; the investigator can adapt by asking additional questions and requesting clarification or additional details. New information can also mean that the investigator will need to go back and interview the parties or previous or new witnesses.

Understand the Organizational Structure and the Workplace

If the investigator is not familiar with the structure of the organization or with the layout of the workplace and this information is relevant to the allegations, he or she should request an organization chart or floor plan to help situate the parties and understand the location of where the events allegedly occurred. In addition, if deemed necessary, the investigator can do a site visit before the interviews. Whenever practicable, these visits should occur in the absence of employees, outside regular office hours so as not to disturb or distract the employees.

Choose an Appropriate Location

The choice of location for the interviews is critical since it allows investigators to create an atmosphere conducive to trust, comfort and openness. Such locations should be quiet, very private and neutral (i.e. not in one of the parties’ offices or at their home).

Establish Contact

The investigator should determine, in advance, whether the interviewee has any special needs that will need to be accommodated during the interview and ensure that they are able to participate in the language of their choice. The investigator should also take this opportunity to remind the interviewee of his or her rights and responsibilities and ensure that they are understood (e.g. information disclosed will not be considered confidential, right to be accompanied, importance of not sharing testimony or allegations with others, etc.)

Explain the Interview Protocol

At the beginning of the interview, the investigator should explain how the interview will be conducted and what is expected from the interviewee. He or she should also verify that he or she clearly understands the purpose of the interview. At this point, it would be a good idea to allow the person to ask any questions they might have.

The investigator should also explain he/she cannot ensure the confidentiality of the testimony because the parties have the right to know what has been said about them and by whom.

Accompaniment

If one of the parties is accompanied by a union representative, a non-represented employee advisor, legal counsel, or any other person of their choice, the investigator should clarify this person’s role at the outset of the interview.

If the parties attempt to bring more than one person to accompany them, the investigator should ask why they feel this is necessary and determine whether this presence is justified. The investigator is entitled to request the exclusion of observers if the process will be hindered in some way.

The accompanying person may not answer questions for the person being interviewed or inhibit the proceedings in any way. His or her role is to provide support and guidance to the person being interviewed. The role of advisors can be summed up as follows:

• To help the person they accompany gather and present evidence;
• To help the parties draft their allegations and respond to those allegations;
• To help the person they accompany to determine the appropriateness of informal conflict resolution;
• To make themselves available so that the investigation can proceed in a timely manner;
• To prepare the person they accompany for the interview by helping him or her present the facts in a logical and coherent fashion;
• To attend the interview and provide moral support to the person they accompany;
• To encourage the person they accompany to remain calm and objective and if necessary, request a caucus or an adjournment;
• To help the person they accompany to manage anger or frustration; and
• To review the preliminary summary of facts and ensure procedural fairness has been observed.

Records of the Interview

The investigator should inform the interviewee that he or she will take notes during the interview and explain the reasons for taking notes:

• To ensure a common understanding of what was said;
• To have a record of the exchange;
• To assist in compiling the report; and
• For verification at a later date.

The use of video or audio recording devices is not advisable. This practice is not conducive to building an atmosphere of trust and may serve to intimidate interviewees who are already experiencing stress and anxiety about the interview. Under such circumstances, they may have a tendency to withhold information. Moreover, the investigator must be prepared to provide, upon request, copies of these transcripts which can be very costly and time consuming.

Managing the Interview

The investigator is responsible for the interview and should have some degree of control over the proceedings. However, the investigator cannot guarantee certain factors such as the outcome of the interview, the interviewees’ participation or the accuracy of their statements. While the investigator leads the interview, his or her role should consist primarily of listening to the parties and witnesses.

Investigators should demonstrate active listening skills. This could include:

• Showing open body language (e.g. arms uncrossed, facing the interviewee, etc.); and
• Making eye contact and acknowledging comments made by the interviewee (e.g. nodding, verbal cues, etc.).

There may be situations where the interviewee attempts to invoke a strong reaction from the investigator; it is important that the investigator avoid being provoked. The investigator must concentrate on obtaining all of the information that is required to better understand the situation under investigation. If the person being questioned contradicts him or herself or one of the other witnesses or parties, clarifying questions could be asked to help the investigator weigh the information.

During the course of an investigation, it is not uncommon for the parties and the witnesses to demonstrate strong emotions such as fear, stress, anger and frustration. The investigator should know how to recognize these emotions, show empathy (not sympathy) toward the interviewee and re-establish a stable and comfortable atmosphere for the interview. If it is determined that it would not be appropriate to continue the interview or that a break is warranted, either by the investigator or by at the request of the interviewee, the investigator should not hesitate to suspend or reschedule the interview at a time that is mutually convenient.

Questioning

The order and type of questions that will be asked during the interview should be determined beforehand. At the beginning of the interview, it is a good idea to begin with conciliatory questions that are less likely to be invoke strong emotions. After a few introductory remarks, the investigator can begin by asking the interviewee routine questions such as his or her full name, position, group, level, work telephone number, and section within the organization.

At some point in the interview, the investigator should ask the interviewee to describe the incidents or behaviour relating to the allegations and ask him or her to explain any related workplace norms, if deemed relevant. The focus of the investigator should be on obtaining facts and direct evidence – not hearsay. This is important because the investigation report must reflect the facts.

Generally, the investigator should not share the allegations with the interviewee during the interview. The allegation is the personal information of the parties and their privacy must be respected to the greatest extent possible. In the case where the allegation may have to be disclosed to a witness, the investigator should state that, “It has been alleged that…Would you please comment?” Also, the investigator should not reveal information discovered from other sources. Such information may prejudice the response and could violate the privacy of the person who provided it.

Recap

At the conclusion of the interview, the investigator can provide a brief recap to ensure that the person agrees with the investigator’s understanding of what was said. The investigator should also ask the interviewee whether he or she has anything to add.

In addition, the investigator must have the interviewee verify and sign his or her notes to ensure their accuracy. If the investigator prefers to have the interviewee sign a statement at a later date, he or she should inform the interviewee accordingly and have it signed by him or her at this time.

Some Final Tips for the Investigator

• Bring a copy of your mandate to the interview. There may be times when you have to refer to it or even show it, either to identify yourself or to assert your investigative authority.
• Refrain from allowing any interruptions during the interview such as telephones or other electronic devices unless this has been agreed to beforehand.
• For the comfort of the interviewee, ensure that water and tissues are available during the interview and that the room is comfortable and conducive to this type of exchange. For example, consider lighting, seating, noise level, level of privacy, accommodation needs, etc.).
• To the greatest extent possible, schedule your interviews to ensure that you have sufficient time to prepare for the interview, interview the parties and witnesses, complete your notes and reflect on the outcome of the interview. “Memory is the faculty that forgets.”
• Number your pages of handwritten notes during the interviews.
• Remember that your notes could be accessed at a later date and so anything you record should be written with this in mind.
• The interviewee is not normally provided with a copy of your notes. This is in part to ensure the integrity of the investigation process.
• He or she will be allowed to review and sign a statement which will then be put on the investigation file.
• At no point during the interview should you exit the interview room and leave your notes or documents unattended.
• Refrain from expressing surprise, distrust or disbelief; maintain objectivity and impartiality.
• In cases where there is tension, fatigue or strong emotions, suggest breaks or spread your interview over more than a day.

At the Beginning of the Interview:

1. Welcome the interviewee and the person accompanying him or her (if present), noting the latter’s name in the file.
2. Provide a brief explanation of the context of the investigation, taking into account that the allegations should not be shared with the witnesses as they are confidential and considered to be the personal information of the parties.
3. Explain the role of the investigator; his or her neutrality and impartiality with regard to the allegations, and the requirements of the mandate (have a copy of the mandate).
4. Confirm that the interviewee has been informed of his or her rights and obligations under the Policy. If interviewing the respondent, confirm that he or she has received a copy of the allegations and has been invited to respond to it in writing.
5. Inform the interviewee that all relevant information communicated during the interview will be documented and that no information can be considered confidential in the context of the investigation. Furthermore, witnesses cannot be given anonymity.
6. Explain how the interview will be conducted and the roles and responsibilities of any person accompanying the interviewee, including the importance of discretion in relation to the information revealed during the interview.
7. Explain the process of validating the notes taken by the investigator during the interview. For example will they be presented to the interviewee at the end of the interview for his or her signature or will they be transcribed and presented for validation and signature at a later date?
8. Ask the interviewee to provide his or her title, position and brief work history (if relevant), as well as their working relationship with the parties. This information should be recorded in the investigator’s notes.
9. Permit the interviewee the opportunity to ask questions about the interview and subsequent process.
10. Ask the interviewee if he or she is ready to proceed, and ask the questions.

At the End of the Interview:

1. Ask the interviewee if he or she has any questions or anything to add.
2. Remind him or her about the obligations of confidentiality and discretion that are essential to a fair investigation procedure for the parties and the importance of not discussing the allegations or the interview with the parties or any other person.
3. Make any necessary arrangements to meet at a later date, if necessary, so that the interviewee can review and sign his or her statement.
4. If another interview will be required, schedule the interview at a time that is mutually convenient.

Note Taking

Remember that much of the information collected in the course of the investigation is subject to the Access to Information Act and the Privacy Act and may be accessed by the parties at a later date. The investigator must be careful to only record facts. Moreover, the persons interviewed can expect to review their statement as recorded by the investigator, to confirm its accuracy, prior to submission of the investigation report.

During the interview, the investigator should weigh the information provided by the parties and witnesses. In gathering the evidence, the investigator should be able to weigh the importance of the information provided. For example, is it direct evidence, opinion or hearsay? Gaps or weaknesses in evidence will require further investigation before accurate conclusions can be drawn.

The investigator’s notes are of vital importance to the investigation. What follows is a list of considerations that should be taken into account in recording notes so as to avoid complications following an investigation:

• Subject to the Access to Information Act and the Privacy Act, notes may be accessed by the parties;
• The collection and recording of notes should reflect the principles of procedural fairness;
• Poorly written notes, which can be characterised by a lack of detail, bias or inaccuracies, may lead the participants to question the integrity of the process;
• Poorly written notes may have to be corrected and could lead to challenges, thereby throwing the investigative process into disrepute; and
• Poorly written notes will prove difficult to interpret and analyse for the purpose of writing the preliminary summary of facts.
• Good quality notes can be characterized as:
  • Written in neutral language;
  • Organized coherently to facilitate the writing of the preliminary summary of facts;
  • Signed by the interviewee, if applicable; and
  • Bearing the security designation of PROTECTED “B”.

What are Some Suggested Note-Taking Practices?

• Identify the witness’ name, address, telephone number, fax number and e-mail address, as applicable;
• Clarify the witness’ title (both at the time of the alleged incidents and at the present time) and his or her role within the organization;
• Specify which party identified the witness;
• Identify the issues discussed including the date, time and location of any alleged incidents;
• If the witness relies on documentary evidence or makes reference to a document, include this document in the file, if appropriate; and
• Determine whether the evidence provided by the witness is direct evidence, opinion or hearsay and record the facts.

What Note-Taking Practices should be avoided?

• Recording your personal opinions or value judgments about the witness or information that was disclosed to the investigator.
• Recording too much information, including irrelevant information.
• Overuse of abbreviations, acronyms or symbols. The information should be easily understood by a third party.
• Attempting to diagnose the physical or psychological health of the person being interviewed; investigators do not possess such expertise.

Compare Similarities and Differences

All statements made by interviewees should be compared to identify similarities (those accounts which are strikingly similar) and differences (those accounts which bear major discrepancies).

The investigator will need to gain a clear understanding of the facts, based on the evidence compiled. In order to do this, the investigator will compare the statements provided by the parties and the witnesses to uncover where the similarities and the differences lie.

While the various statements of the alleged incidents may bear certain similarities, it is equally possible for the perceptions of those involved to vary considerably. If there are important differences in testimony, the investigator should weigh it according to the validity or strength of the information (e.g. direct, firsthand evidence vs. hearsay, personal perceptions) and the credibility of the witnesses. If the statements of the parties are in conflict, the investigator should review the witnesses’ versions to determine whether they serve to support or refute either party’s statement and to what extent. For example, if a majority of the witnesses interviewed support the allegations, the investigator may reasonably conclude that the allegations are more than likely to have occurred. However, the number of witnesses that support a version of events should not be the only consideration; the investigator should also consider whether their testimony is credible and whether there is other supporting evidence.

Create a Chronological Description of Key Evidence

A chronological description will help establish the sequence of events related to the allegations and can be a useful tool for preparing the analysis. The information should be organized in chronological order according to the allegations and the evidence that either supports or refutes these allegations.

Once completed, the description should be reviewed to identify any gaps or inaccuracies which may require further investigation.

The following chart can be used to record the chronological description related to the allegations and can prove to be a useful tool in preparing the analysis.

Weigh the Information

Once all of the information is collected, it should be weighted against the following considerations:

• How important is the evidence?
• What is the relevance of the fact to the allegation?
• Does it prove or disprove the allegation?
• If the evidence is not directly related to the allegation, does it reveal other important information or lead to another source?
• Are there gaps or inaccuracies that require further investigation?

It is important to note that the fact that evidence may not appear to be relevant at the time that it is revealed to the investigator does not mean that it may not gain importance at a later stage in the investigation.

In determining the accuracy of evidence provided, the investigator should identify whether there is conflicting information and seek additional sources to establish whether the evidence is valid or not. The investigator will need to reconcile the data while also taking into consideration the fact that it is natural for witnesses to observe and remember situations differently given the subjectivity of the perceptions of each individual. The more time that elapses, the more difficult it is for people to recollect events clearly.

In determining the credibility of the witness, the investigator should consider whether the witness has provided direct or first hand knowledge of the incidents or whether the witnesses is providing a personal opinion or repeating hearsay. A credible witness is one that is believed to be telling the truth without any attempt to hide or exaggerate the facts, in a straightforward and honest manner.

In examining the facts, the investigator should examine each piece of information individually and as a whole. Information that could be considered weak if viewed on its own might be strengthened by supporting evidence. On the other hand, evidence that appears strong on its face can be weakened by the provision of contradictory evidence.

Important Principles for the Investigator to Consider

Even if the body of information contains significant contradictions or if there is a lack of convincing evidence, the investigator is still required to draw a conclusion. In order to determine that the allegation is founded, the evidence must demonstrate on a balance of probability that the allegation is likely to have occurred. In the absence of such evidence, the investigator must conclude that the allegation is not founded. The complainant bears the onus of proof and the standard of proof is “more likely than not”, in assessing if that person has been subjected to workplace harassment. Drawing such conclusions can be especially challenging in situations where two people present different versions of incidents. However, two conflicting views should not necessarily lead the investigator to conclude that the allegations are not founded. Rather, each account should be carefully assessed in light of all of the other information and evidence collected. Facts analysis is more than a counting game; the number of witnesses who can support a version of events should not be the only consideration. At times, fewer strong pieces of information may outweigh a larger number of weaker pieces of information. The investigator must be able to account for and explain the different weight allotted to the evidence collected.

Furthermore, when analyzing the evidence the investigator should avoid trying to read into the motives of the person against whom the allegations are made, unless there is evidence to demonstrate that malicious intent was indeed a factor. In situations involving allegations of abuse of authority, the intent of the manager may be an important factor in determining whether he or she harassed a subordinate. For example, if the manager was carrying out his or her managerial responsibilities in an appropriate manner with no express intent to harm his or her subordinate but rather to achieve a legitimate performance management objective; this should be taken into account in determining whether his or her actions constituted harassment.

In most cases, the intent of person alleged to have harassed another should not be a factor in determining whether harassment occurred. While the intent to harass another individual may be an aggravating factor for the manager in determining appropriate corrective and/or disciplinary measures, the investigator should not be overly concerned with this aspect of the allegation. The investigator must simply apply the criteria identified in this Guide to determine whether the behaviour meets the definition of harassment.

Identify Areas that Require Further Inquiry

The investigator should ensure that he or she has collected the information required by the Mandate, including information to support or refute each individual allegation. In the absence of this, the investigator will need to determine the reason for the lack of information – e.g. lack of sources, limited scope of questioning or witnesses, poor understanding of the issues or allegations, etc.

If collecting further information is not feasible, the investigator will have to describe what information is lacking and how it affects the outcome of the investigation. If the evidence does not demonstrate on the balance of probability that an allegation is founded, it should be deemed unfounded in accordance with the burden and standard of proof required in harassment situations.

The following table may prove useful in helping the investigator reconcile evidence that is conflicting or inconclusive. It can be completed for each allegation in order to identify the discrepancies or gaps in evidence.

Preliminary Summary of Facts

Further to harassment allegations made by [Name of the complainant, title, section, division] regarding [Name of the respondent, title, section, division], this preliminary summary of facts is submitted in accordance with the terms and conditions of the mandate assigned to the below-mentioned investigator.

[Investigator Signature]
[Name of the investigator]
[Date]

Body of the Summary

The interviews were held at (location) between (dates) and the following persons were interviewed:

• The complainant [name, title, organization], accompanied by [name, title, organization];
• The respondent [name, title, organization], accompanied by [name, title, organization]; and
• The witnesses, [name, title, organization].

The following documents were reviewed:

• The allegations of harassment;
• The organization chart; and
• The Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process

Mandate

The first paragraph of the preliminary summary of facts indicates the basis upon which the investigation is conducted and provides information about the parties.

Example:

“This investigation is conducted under the Policy on Harassment Prevention and Resolution and Directive on the Harassment Complaint Process, pursuant to allegations of workplace harassment made by [name and title of complainant] regarding [name and title of respondent.]”

The investigator then describes the mandate and the name of the person responsible for managing the harassment complaint process.

Example:

“On [date], [Name of person responsible for managing the harassment complaint process], assigned to [Name of investigator] the mandate to investigate allegations of workplace harassment between the parties named above. This investigation was conducted according to the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process.”

Background

The purpose of this section is to provide general information about the allegations. The information must be factual and relate directly to the allegations. Usually, it contains information such as general data about the parties, the workplace, a brief background of the situation, a list of witnesses and, if necessary, a reference to an organization chart. For example, the investigator might situate the parties in relation to the organization chart and describe their working relationship with each other. In addition, the investigator could summarize the allegations including any preceding incidents or events and the nature of the allegations, the reported impact on the complainant.

Preliminary Objections (if applicable)

During the interviews with the parties, the investigator may receive preliminary objections from them. It is recommended that the investigator discuss these objections with the person responsible for managing the harassment complaint process and address these objections accordingly. For the most part, such objections should not delay the fact gathering process. However, if the objections raised concern over the application of procedural fairness, such as an alleged breach of impartiality, the investigator must promptly deal with it in conjunction with the person responsible for managing the harassment complaint process.

The Allegations

The allegations must reflect those put forth by the complainant which would have accompanied the investigator’s mandate, and any additional allegations approved by the person responsible for managing the harassment complaint process and reviewed by the respondent.

The Purpose of the Investigation

Clearly identify the issue that is to be decided through investigation.

Example:

“Did [Name of the respondent] harass [Name of complainant] in the workplace?”

The Facts

This part can vary in length and detail depending on the nature and complexity of the allegations.

With all this information in mind, the investigator should write the summary in a way that gives the reader enough information about each allegation in a way that is easily understood and logical. The preliminary summary of facts must present both parties’ version of the facts as well as the witnesses’ testimony. It must also present any relevant information obtained through documentary evidence.

The role of the investigator is not to repeat verbatim every single piece of information communicated by the parties and witnesses in the course of the investigation but to sort through the information and filter it according to its relevance to the allegations. He or she must separate what is relevant from what is not, group the information by allegation and distinguish facts from opinions. Any information that does not specifically relate to the investigation but warrants attention from management should be brought to the attention of the person responsible for managing the harassment complaint process at the earliest opportunity and should not be included in the preliminary summary of facts unless specifically instructed by the mandate.

The investigator must set aside evidence that would be inadmissible in law by reason of:

• Rules related to administrative secrecy in the public interest (e.g. national security);
• Laws governing privilege (e.g. client-solicitor); and
• Laws protecting the confidentiality of medical records or any other documents from medical practitioners.

To ensure that adequate information is included in the preliminary summary of facts, the investigator should consider whether:

• There are sufficiently detailed notes of the statements of the parties and witnesses;
• The appropriate persons were interviewed and whether the right questions were asked; and
• There is sufficient information upon which to conclude whether harassment did or did not occur.

If there are gaps in information, the credibility of the investigation will be significantly affected and every effort should be made to resolve these issues before the submission of the preliminary summary of facts.

Submission of the Preliminary Summary of Facts

The investigator submits the preliminary summary of facts to the person responsible for managing the harassment complaint process. Once it has been reviewed by the organization to ensure adherence to the Access to Information Act and the Privacy Act, the latter will distribute a copy of the summary to the parties. This will allow them each an opportunity to make written submissions. For ease of reference, a sample letter to the parties disclosing the preliminary summary of facts is included at the end of this Annex.

Upon receipt of the summary, the parties are given a reasonable amount of time (10 working days) to respond to the information provided therein. The preliminary summary of facts is not meant to disclose every detail of the investigation, but rather the key facts that will form the basis of the decision as to whether the harassment allegations are founded or not; this will assist both the investigator and ultimately the person responsible for managing the harassment complaint process in rendering a decision.

If further investigation is required following the submission of the preliminary summary of facts, the investigator will be required to disclose any new or additional information that is obtained in the course of this investigative process if it will be used to substantiate the final report. Again, the parties should be given an opportunity to respond to this additional information.

After considering the parties’ response to the preliminary summary of facts, the investigator analyzes the information and then prepares the investigation report which includes the analysis and conclusions of the investigation.

Characteristics of a Good Report

These objectives should be applied throughout the report-writing exercise, in order to ensure that the investigation report is concise and readable.

• The report must achieve its objective – to respond to the requirements of the mandate and answer the questions raised (i.e. are these allegations of harassment founded or not?).
• The report must be designed to meet the needs of the person responsible for managing the harassment complaint process.
• The report must be logical, sufficiently detailed and accurate. It should not include extraneous or irrelevant information or unsubstantiated opinions. The person responsible for managing the harassment complaint process must be able to rely on the facts set out in the report and render a decision accordingly.

The investigator should ensure that the structure of the report is clear for the reader so that he or she can easily access and reference the information. The pages should be clearly numbered, dates and witnesses should be accurate and there should not be any spelling or grammar mistakes. Failing to write in a clear and coherent fashion may cause the person responsible for managing the harassment complaint process to be concerned that other critical errors in the content or methodology could have occurred.

To the greatest extent possible, the investigator should rely on simple and direct language to describe the facts and to develop the analysis. The person responsible for managing the harassment complaint process will expect the facts to be clearly spelled out and the analysis to be sound.

As a general rule, the investigator should avoid using:

• Ambiguous language;
• Abbreviations or acronyms;
• Overly long or complex sentences;
• Characterisations or descriptions which could denote bias; and
• Medical, legal or overly technical terminology.

Finally, it is a good idea for the investigator to set aside the report for a day or two and then read it anew. This will enable him or her to more readily flag any gaps or errors. Before submitting the report the investigator should consider the following questions:

• Would someone unfamiliar with the situation be able to easily understand the report?
• Is the report coherently and concisely written?
• Does the report satisfy the requirements of the mandate?

For a sample layout of the investigation report, please consult Annex 10 of this Guide.

Cover Page

Body of the report

Mandate

(The first paragraph of the body of the report indicates the basis upon which the investigation was conducted.)

The Investigation Procedure

(The next four sections essentially repeat the information produced in the preliminary summary of facts.)

The interviews were conducted in [location] from [date] to [date] at which point the following persons were interviewed:

The parties to the dispute:

[Name of the complainant] accompanied by [Name, title and organization of the person accompanying him or her].

[Name of the respondent] accompanied by [Name, title and organization of the person accompanying him or her].

The witnesses:

[Names, titles and organizations of the witnesses]

The following documents were considered:

Conclusions

In this section, the investigator summarizes his or her findings and draws conclusions with supporting rationale for each individual allegation. Investigation reports should include a section with conclusions to summarize the main points and highlight the essential information of the report. The conclusions are often considered the most helpful element of the report, because they succinctly clarify the findings.

With respect to the allegations, the findings should never be inconclusive. If the investigator determines that there is not sufficient evidence to conclude that the allegations are founded or partially founded, the investigator must find that the evidence does not support the allegations, consistent with the required burden and standard of proof.

The conclusions on each allegation must give readers a clear understanding that:

• on the balance of probabilities, the evidence available does (or does not) support the allegation(s);
• and if supported, the conduct does (or does not) satisfy the criteria for harassment as per the Policy.

The conclusions must not contain any surprises, that is, they must all relate to the allegations and evidence contained in the report. The conclusions must be coherent (logical and easy to follow), clear (written in plain language), concise, and appropriate to the facts as stated.

Example: “Given the above-noted evidence and in light of the available information, I conclude on the balance of probability that the allegations of harassment in the workplace made by [Name of the complainant] regarding [Name of respondent] are founded/not founded.”

If the mandate required the investigator to identify issues, the investigator would also need to include this finding in the investigation report.

Example: It appears that roles and responsibilities of the parties are confusing and might be source of conflict between them. There seems to be an overlap in responsibilities which generates a conflict which has been ongoing for months.

Note: The investigator’s report does not contain recommendations on what administrative, corrective/ restorative, and/or disciplinary action should be taken.

Investigator’s Closing Declaration:

I declare that, in conducting this investigation, the rules of procedural fairness were observed. I ensured that the parties were reminded of their rights and obligations with respect to the investigation process and gave all those involved, including witnesses, the opportunity to verify their statements. I also declare that I took into account all the comments made by the parties in regard to the preliminary summary of facts in my assessment of this case and in the conclusions presented above.

[Signature]

[Date]