Shaun Parker, partner at Osler, Hoskin & Harcourt, to speak at Employment Law Masterclass about perils and pitfalls of internal investigations
When it comes to employment litigation, HR leaders are often stuck between a rock and hard place. Shaun Parker, partner at Osler, Hoskin & Harcourt, and speaker at HRD’s upcoming Employment Law Masterclass Alberta, says there’s a mix between legitimate complaints and those driven by personal grievances rather than actual harassment or bullying.
"Not all are legitimate," Parker tells HRD. "The majority are being made for the proper purposes when there are real cases of harassment and bullying. [However] we're also starting and continuing to see illegitimate use of the system... We're seeing an uptick in complaints from employees who don't like being performance managed or don't like their boss."
These instances, he notes, often result in harassment complaints against supervisors who are merely executing their managerial duties appropriately. And this growing trend, according to Parker, is not always driven by malicious intent.
“Sometimes that’s nefarious, sometimes it’s not, but... there are limited cases where certain bad actors are weaponizing the process to create headaches for management,” he explains.
While managers are permitted to manage their employees, including having difficult conversations, there is a fine line they must be careful not to cross, such as “yelling at the top of your lungs” which could be construed as harassment, adds Parker, who will be speaking at Employment Law Masterclass Alberta.
The first significant challenge Parker identifies is how HR professionals should navigate these harassment and bullying complaints. The difficulty lies in discerning the legitimacy of such complaints in an environment where performance management can easily be mistaken for harassment.
Another challenge is determining the appropriate manner of conducting investigations.
"Employers have a lot of flexibility in how they’re actually going to investigate," he explains, noting that while there is a legal duty to investigate under workplace safety legislation in many provinces, the term 'investigation' itself is often not defined, leaving considerable room for interpretation. So much so that many organizations are now defaulting to external, third-party investigators, though he argues this isn't always necessary.
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“Not every complaint requires a gold standard investigation,” Parker says, advocating for internal investigations in less serious cases, such as minor HR complaints.
Parker also addresses the growing sophistication of HR professionals, particularly in mid- to larger-sized companies, where there is now more specialized training in conducting investigations. However, he cautions against assuming that internal capabilities always suffice.
"Just because you're capable of doing an investigation doesn't mean that you should do it," he warns. "Knowing when to escalate matters to an external, third-party investigator is important.”
When asked about the availability of third-party solution providers for outsourcing investigation work, Parker confirms that several options exist, ranging from law firms to independent investigators and larger HR consulting firms. However, he is quick to point out that not every situation necessitates legal involvement.
“Many times people think they need a lawyer to investigate, and I suggest you don’t necessarily want a lawyer to investigate every time," Parker adds, though he acknowledges the value of law firms that specialize exclusively in neutral, third-party investigations. These firms, he notes, have become "phenomenal at what they do" due to their focused expertise and often provide cost-competitive services.
Essentially, the importance of avoiding bias here can’t be understated - whether it’s from personal experience or assumptions about an individual’s condition. For Parker, he proffers an example of an investigator who has previously suffered from depression and might inadvertently let this experience influence their assessment of a witness with similar issues.
“You can’t assume... you have to check your bias,” Parker insists.
Book your tickets for HRD’s upcoming Employment Law Masterclass here.