Presented by:Stephen Flaherty, Hospital Labour Disputes Arbitration Act (HLDAA) Specialist/Litigator

(former Human Rights Investigator for the Ontario Human Rights Commission)

June 15, 2015

Ontario Nurses’ Associationwww.ona.org

Human Rights Investigations: Nothing but the Truth?

ONA Provincial Human Rights and Equity Teleconnect

Our Union. Respected. Strong. United. 1

1. Role of the Union in the Investigation.

2. Step Inside the Investigation.

3. Evaluate an Investigation Report.

4. Next Steps.

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Overview

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Types of Investigations

• Discrimination (racial, gender, disability ...).

• Sexual harassment.

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Purpose of an Investigation

• Provide an evidentiary basis for managerial action.

• Resolve internal matters in a cost effective fashion.

• Limit employer liability .

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Role of the Union

• Ensure procedural fairness.

• Monitor the investigation.

• Ensure that employer’s policy is being followed.

• Evaluate the investigation findings.

• Challenge the process, if necessary.

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Who is the Investigator?

Columbo or Clouseau

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Qualities of an Effective Investigator

• Good listener.

• Inquisitive.

• Asks appropriate questions.

• Knows the law surrounding the allegations.

• Possesses good judgment.

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*Postmodernist Reality Check

• Investigators are not “neutral.”

• Beliefs, experiences and values shape the evidence.

• Objectivity is defined as the ability to suspend beliefs. and challenge perspectives

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Use of External Investigators

• Serious allegations (sexual harassment or racial discrimination).

• Systemic issues.

• A member of management that ranks above the internal staff conducting the investigation.

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Causes of Bad Investigations

• Investigator lacks necessary skill sets.

• Investigator is unprepared for examinations.

• Institutional bias.

• Investigator bias.

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Stepping Inside the Investigation

The investigator’s first impression is shaped by the following:

• Written complaint.

• Written response.

• Objective evidence i.e., patient files.

• Background information i.e., employment files.

• Employer policies.

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Union Priorities in the Investigation

• Are the parties separated during investigation?

• Is the complainant’s story told?

• Does the respondent have full particulars?

• Are the parties represented during the interview?

• Is there a written record of the interviews?

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The Written Record

• Do not rely on investigators’ notes.

• Record both questions and answers.

• Ensure that the interviews are complete.

• Ask questions at the end of the interview.

• Underscore any missteps made by the interviewer.

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Monitoring the Investigator

• Is the investigator taking notes?

• Does the investigator work from a script?

• Does the investigator engage the witness?

• Is there eye contact?

• Does the investigator ask follow-up questions?

• Is the investigator respectful?

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The Importance of Credibility

• An assessment of credibility moves beyond the impasse “he said; she said” disputes.

• This is important in harassment complaints where often there are no witnesses/objective evidence.

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Measuring the Credibility of the Witness

• Listen carefully to the witness.

• Is the story internally consistent?

• Are there gaps in memory on crucial points?

• Is the witness forthright?

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Body Language or Paralinguistic Behaviour

• Witnesses are uncomfortable telling a lie.

• The body provides important clues to lying.

• Choice of words can also indicate deception.

• Caution: There are limitations to this style of analysis given different cultural backgrounds.

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A Caution about Respondents

1. Respondents are often upset and angry.

2. Anger and frustration is not equivalent to guilt.

3. There is only one thing worse than suffering harassment. That is, being falsely accused of it.

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Possible Signs of Dishonesty

• The witness hesitates prior to answering?i.e., asks to repeat the question.

• They are emphatic in their denials? i.e., “I did not” vs. “I didn’t.”

• Use of the third person to distance themselvesi.e., “that woman.”

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Evasive Answers

• Generalized answers that avoid the question.i.e., “I would never do that…”

• Qualifying phrases that reference memory. i.e. , “As far as I can remember…”

• Attempts to blunt the interviewer’s point.i.e., “It is not really an addictive substance. Not like

cocaine or anything.”

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Investigation Report

• Is the Union entitled to the report?

• Depends on the employer’s policy.

• Most employers offer executive summaries.

• Obtain order to access report at arbitration.

• Question of privilege?

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Evaluation of Investigator’s Report

• Is the conclusion reasonable?

• Was the process fair?

• Are the recommendations consistent with evidence?

• Was there a finding of credibility?

• What evidence was relied upon?

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Grievance or Arbitration Process

• File a grievance.

• Hook the grievance under a Code ground.

• Problems with investigation, consider reprisal.

• If grievance is outside time limits, appeal to the timelines in the Code.

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Scenario

* See attached document

Discussion Questions:• What should the Union representative monitor? • What type of questions should the investigator

ask? • What information should the investigator obtain?• What issues should the Union representative

raise?• When should the Union representative intervene?

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Human Rights Investigations:Nothing but the Truth?

Our Union. Respected. Strong. United.

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