A significant portion of my practice is concentrated in the area of conducting workplace investigations which result from allegations of harassment, bullying or code of conduct violations. Often what transpires is that HR, or the manager receives a complaint from an employee alleging a violation of the organization's Workplace Violence or Harassment policy. The precipitating issue(s) are as varied as the individuals themselves and may result from one incident which served as the tipping point or from a series of unrelated incidents which have occurred over time. In instances where the complaint appears on its face to represent a violation of the organization's Workplace Violence or Harassment policies and/or related legislation (Occupational Health & Safety Act and Ontario Human Rights Code) it is incumbent upon the organization to conduct a timely and thorough fact finding into the allegations.
Some of the complaints that I have seen lately, citing violations of either Workplace Violence and or Harassment policies, clearly fall short of these policies as well as the relevant legislation. While the issues cited in the complaint may have reached a critical point and require intervention on some level, investigating the complaint within the context of either of these two policies in the absence of an alleged violation appears on its face, inappropriate.
One of the trends that I have seen since Bill 168 was proclaimed in 2010 is that it has become somewhat of a "catch-all" in some workplaces. There is no question regarding the merits of the legislation given some of the unimaginable tragedies that have occurred in workplaces across this country. Workplace violence policies are relatively new to organizations, and people want to do the right thing. I believe that in some cases, organizations choose to err on the side of caution by processing complaints as filed rather than conducting a preliminary fact finding to determine whether the complaint does in fact represent a violation of either of these policies. In addition, in the absence of other formal mechanisms in the workplace to deal with complaints, these policies appear to be the only vehicle available to an individual to bring forward his/her complaint
The question I pose is- "are the extensive processes associated with conducting workplace violence and harassment investigations the right vehicle for dealing with other kinds of workplace disputes for example, conflicts between an employee(s) and managers?" Have we lost sight of the intent of Bill 168 and what it was trying to achieve? The intent of Bill 168 was to enhance protections for employees against workplace violence and address issues of workplace harassment.
I would suggest that upon receipt of an employee complaint, that HR conduct a preliminary fact-finding to determine whether the complaint does in fact meet the test for either of these two policies. If it does not, then your internal complainant resolution policy and procedures would be the most appropriate vehicle for formally responding to complaints. While not mandated by legislation, the timelines and steps mirror somewhat those that are found in your Workplace Violence and/or Harassment policies.
A second option is to refer the matter to a third party to mediate. Mediation has been long used to deal with all kinds of complaints including Human Rights cases where there are no obvious health and safety or risk considerations. Mediation represents an effective way to resolve disputes between two parties often achieving mutually satisfactory and concrete results. The process is private, confidential, and cost-effective compared to conducting a full blown and often unnecessary investigation. As the outcomes are mutually attained and agreeable by the parties, compliance with the mediated agreement is typically fairly high.