The complainant may feel upset or angry if the complaint was not substantiated or worried about being treated differently in the workplace or resented for having brought the matter forward. The respondent who was found not to have harassed someone may still feel embarrassed or angry at having had to go through the process; and if he is a manager of the complainant, he may be worried about how to manage that person’s performance in the future. Even witnesses may feel stress about being perceived as having taken sides or fear retaliation.
Too often, employers believe that once the investigation is complete the work is done. However, it’s critical that employers act proactively to intervene in the aftermath of an investigation to ensure that problems or bad feelings are not allowed to fester. Fortunately, there are a number of steps that an employer can take to help restore trust in the workplace and minimize the risk of future complaints.
Many employers fail to effectively communicate the outcome of the investigation, leaving all employees wondering whether the investigation has been completed and what happened. As a first step, employers should:
• Meet with the complainant personally. Though an employer may be constrained in how much information it can share, particularly if wrongdoing was found and discipline imposed, it is important to advise the complainant of the outcome of the investigation. It is often the case that the behaviour complained of did not meet the legal threshold for a finding of harassment but was nevertheless problematic. In such circumstances, it will be important to reassure the complainant that steps will be taken to address the underlying problem.
• Meet with the respondent personally. If wrongdoing was found, the respondent will need to be disciplined appropriately. But even if there was no finding of wrongdoing or the report was inconclusive, the respondent should be reminded of the employer’s policies around anti-reprisal and confidentiality and given support in determining how best to continue to work with the complainant.
• Thank the witnesses for their co-operation, tell them the investigation has been completed, encourage them to bring any future complaints forward and remind them of the employer’s expectations around confidentiality and anti-reprisal.
In the aftermath of an investigation, parties may have great difficulty, particularly in the context of continued distrust. A strong mediator can help the parties resolve their issues and repair their relationships as much as possible and restore harmony in the workplace.
A mediation can be particularly important where a complaint did not meet the legal threshold for workplace harassment but was nevertheless grounded in problematic behaviour. An unsubstantiated complaint will simply exacerbate the original problem. Mediation provides a way for the parties, with the help of a neutral third party, to address the complainant’s underlying concerns and find a mutually acceptable way to move forward.
Whether or not there was a finding of wrongdoing, an investigation will often uncover systemic problems in the workplace that caused or contributed to the conduct complained of and/or the complaint.
These may include difficult group dynamics, confusion around roles and responsibilities or a lack of understanding as to what is appropriate performance management. Once the investigation is complete, the employer should take the opportunity to conduct an assessment of the workplace, involving its employees in identifying the steps that can be taken to address systemic problems.
By taking the time to communicate with the parties, provide a process through which they can resolve their issues and address systemic problems in the workplace, employers may find that not only have they restored harmony in the workplace, they have actually improved the work environment and prevented the possibility of future conflicts and complaints.
Allison Greene is a partner at Karimjee Greene LLP.