EVALUATING THE PROCESS
You need to make sure the process itself was fair and complete:
- Was the allegation investigated?
- Was the alleged harasser told about the allegations?
- Are all of your facts based on observations, documentation, and evidence, and not on assumptions?
- Have all the relevant witnesses been interviewed?
- Are there any outstanding questions? Are there any inconsistencies? If so, is it possible to clear them up? Who should be interviewed and what questions need to be asked?
EVALUATING THE EVIDENCE
As an investigator, your job is to gather all the evidence from everyone involved. When it appears to be a case of one person’s word against another, it’s important to look at the overall context and the workplace climate. Think through all that you have heard, and be creative and energetic in conducting a full investigation.
Workplace harassment doesn’t need to be proven “beyond a shadow of a doubt.” In fact, it rests on a “balance of probabilities.”
You need to evaluate the information you collected and decide if there are sufficient grounds to go to the next step. If there’s clearly not enough evidence to go forward on an individual case, you can negotiate with the employer for a group solution (such as anti-harassment or human rights training). You need to determine the likelihood that the harassment took place:
- Did the alleged harasser have the opportunity to commit the behaviour?
- Did the alleged harasser specifically deny or admit to each allegation?
- Were the witnesses credible?
- Did any of the witnesses observe the alleged behaviour first-hand?
- Does their information support or contradict the other information collected during the investigation?
- What is the relationship between the witness and the complainant, and the witness and the alleged harasser? Does the witness have an interest in the outcome of the investigation?
PROCEEDING WITHOUT WITNESSES
If there are no witnesses, part of the case may rest on credibility, and part of the case will rest on a broader examination of the workplace climate. Just because someone is ‘well-liked’ or ‘popular’, doesn’t mean they didn’t harass someone.
IS IT A COMPLAINT OF “POISONED WORK ENVIRONMENT?”
- Read through the description of ‘poisoned work environment’ in this guide.
- How many workers participated in the alleged harassment?
- Who else was allegedly harassed? (By whom?) How did that person respond to the behaviour? (If they ‘went along’ with the behaviour, it does not change the complainant’s statement that it was unwelcome.)
- How frequent / widespread was the harassment?
- Who saw the alleged harassment?
- How did the alleged harassment affect the complainant’s ability to do their job?
- Did the supervisor of the complainant know or should they have known about the alleged harassment?
IS IT A HARASSMENT COMPLAINT?
- Did the alleged behaviour violate the Unifor Harassment Policy or the Joint Harassment Policy? If not, did the alleged behaviour violate another section of the collective agreement or employer rule?
- Was the behaviour unwelcome? Did the alleged harasser know it was unwelcome? Should they have known that their behaviour was unwanted and/or offensive? Again, even if the complainant initially went along with the alleged harasser’s behaviour, that behaviour could still be unwelcome to the complainant.
WHAT IF THE COMPLAINANT WANTS TO WITHDRAW THE COMPLAINT?
Find out why the complainant wants to withdraw the complaint, and try to address their concerns (such as threats of retaliation). Once the union has been made aware of workplace harassment, we should carry through with the investigation, as with any grievance. If it is a case of poisoned workplace environment, we may decide to file a general grievance (without naming the complainant), and demand that the employer resolve the issue and provide anti-harassment training for all workers and supervisors. There may be extreme situations when a complainant has reason to believe that carrying through with the complaint will create even more serious repercussions for them. If this is the case, contact your National Representative to discuss appropriate action.