In most of our workplace investigations, the organization that retains us asks us to measure our findings of fact against one or more of their policies. This means that, once we have made findings of fact, we must decide whether the respondent's conduct has breached a policy or policies that the organization has asked us to apply. We call this the "policy analysis" section of the investigation report.
At times, the policy analysis is straightforward – the respondent's behaviour so clearly crosses the line that there is little doubt that it contravenes the applicable policies. Often, however, we have to carefully dissect the words of the policies to determine whether there is a breach, which tends to be more challenging. This work is often made more complicated by the language of the policies. I have expanded upon some of these policy issues below.
First, organizations often ask us to apply multiple policies that address the same subject-matter as one another. For example, an organization may ask us to determine whether the respondent has engaged in harassment under each of their respect at work policy, harassment policy, and code of conduct. Often, however, the policies do not work harmoniously with one another, in that each provides a different definition of harassment. This complicates the analysis significantly, as it usually requires us to do a separate analysis under each policy. It can also lead to the peculiar result of finding harassment under some, but not all, of the policies.
Second, and on a similar note, a policy may have several definitions for a similar term. An example of this is a policy that contains different definitions for the terms "harassment," "personal harassment," and "workplace harassment." This can lead to a somewhat messy analysis as each of the terms will need to be considered; this can be challenging when the definitions are inconsistent with one another, as they often are.
Third, some policies contain definitions that are inconsistent with the definitions used in legislation. For example, the widely accepted definition of harassment in Ontario, which is in the Occupational Health and Safety Act, incorporates a subjective and objective element. Specifically, harassment is defined as a vexatious course of comment or conduct that is "known" (subjective element) or "ought reasonably to be known" (objective element) to be unwelcome. Some organizations in Ontario, however, deviate from this legislated definition by eliminating either the subjective or objective component, or both. For example, a policy may define harassment as a course of conduct or comment that is offensive and unwelcome. On its face, this appears to create a very low threshold for a finding of harassment as the respondent's knowledge about the unwelcomeness of the behaviour does not appear to factor into the equation. The challenge for us, as investigators, is that it is difficult to know whether the organization intentionally set a very low threshold for harassment, or if this was an oversight. It may thus result in a finding of harassment where one was not intended.
Fourth, some policies have defined terms that are not actually used in the policy. For example, it is not unusual to see the term "bullying" included in a policy's list of defined terms, but not actually used in the remainder of the policy. The difficulty is that it is then not clear how the organization intended to deal with bullying.
Fifth, some policies contain key terms that are not defined. An example of this is the term "reprisal," which we find is rarely defined in the policies that we have encountered. When this happens, we usually need to have recourse to case law, which adds to the complexity of the analysis.
Lastly, we are at times provided with different versions of the same policy and it may be unclear which one applied at the time of the events at issue. If a policy has been revoked, it is helpful for it to contain a revocation date, and for the new policy that replaces it to indicate the date on which it takes effect; this helps to eliminate any uncertainty.
A takeaway for organizations is to review their policies to ensure that they are free from these issues; this simplifies the analysis process and may help to avoid inconsistent conclusions in workplace investigation reports.
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