Page 12 - GBC summer 2018 english

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Golf Business Canada
“Until an investigation has been concluded, it is important to remember that these are allegations, and to treat both parties with fairness and impartiality.”
Until an investigation has been concluded, it is important to re- member that these are allegations, and to treat both parties – i.e., the alleged harasser and the alleged victim of harassment – with fair- ness and impartiality. Only once the investigation has been concluded, and it has been determined wheth- er the complaint has merit, will an employer be in a position to respond with some form of discipline.
EMPLOYEES FOUND GUILTY
As is the case with all forms of workplace misconduct, employers must take into account a number of factors in deciding how to respond where an investigation has con- cluded that someone within their organization is guilty of sexual harassment. The single most impor- tant factor in deciding on an appro- priate response will be the nature and severity of the harassment.
Some of the other factors that are relevant include: how long the employee has been employed, whether they have any previous disciplinary record, how any other similar misconduct has been addressed in the past, and whether the employee acknowledges the wrongfulness of their conduct and expresses genuine remorse.
Where the misconduct is suf ciently serious, termination without warning and without notice may be justi ed. In less serious cases, a warning, or some other lesser form of discipline, may be most appropriate. While it may be tempting to want to respond to proven cases of harassment by ring the guilty employee, the cases considered on the folllowing pages offer some guidance on when termination for sexual harassment will be warranted, and when it won’t be.
INVESTIGATION OF ALLEGATIONS
In all cases, when an employer becomes aware of allegations of sexual harassment, it is advisable that some form of investigation be conducted. The precise form that the investigation should take, and how formal it needs to be, must be decided on a case-by-case basis since it will depend upon the nature and severity of the allega- tions that have been made.
A question that often arises with respect to harassment investi- gations is whether it is suf cient for the employer to appoint some- one from within its own organiza- tion to conduct the investigation (i.e., an internal investigator), or whether an impartial, third-party (i.e., external) investigator should be retained. We have compiled a list of questions or factors to consider in deciding between these two options:
Internal Investigator:
•Are the allegations relatively minor or less serious in nature?
• Has there been only a single inci-
dent of alleged harassment?
• Is there someone internal who is quali ed to conduct an investiga- tion and who will be perceived as
being impartial?
• Can the person who is quali ed
be relieved of their other duties to allow them to complete the investigation in a timely manner?
If the answer to most of these questions is “yes” then it might be ac- ceptable to appoint an internal person to conduct the investigation.
External Investigator:
•Are the allegations more serious in nature or have they occurred over an extended period of time?
• Would any internal person who might be quali ed to conduct the investigation be in a potential con- ict of interest or potentially be perceived as not being impartial?
•Are the allegations being made against a member of senior man- agement or someone with a high pro le within the organization?
• Are there allegations of widespread harassment over an extended period against a number of employees?
If the answer to any of these questions is “yes” then it is likely advisable to retain an independent and impartial external investigator to conduct the investigation.
In many cases, it will be a good idea to separate the alleged harass- er and the employee who claims to have been harassed while the in- vestigation is underway, particu- larly where one of them reports to the other.
Some of the ways in which this might be achieved would be to move one of them to a different depart- ment, to allow one of them to work from a different location or possibly from home (if their job allows for this) or, if the allegations are serious enough, to suspend the alleged harasser until the investigation has been completed.