Workplace Investigations: When and How to Run Workplace Investigations

In this episode of Coffee ’n’ Law, host Amy Davies is joined by workplace investigator Dean Benard of Benard + Associates for a practical and eye-opening conversation on workplace investigations.

They explore when an organization is legally and ethically required to investigate, including both formal complaints and situations where management becomes aware of potential issues. Dean breaks down the concept of a “threshold analysis” and explains how employers can determine when an investigation is necessary.

The episode also highlights a broader organizational challenge: many workplace issues are known long before they are formally investigated. Dean introduces the idea of “watchers” within organizations and explains how tolerated behaviour can escalate into serious legal and cultural risks if left unaddressed.

The episode closes with the usual “Spill the Tea” segment, this time offering a powerful insight rather than a story, revealing why workplace investigations often expose patterns that organizations already suspected but failed to act on.

Whether you are an HR professional, business owner, or organizational leader, this episode provides essential guidance on how to approach workplace investigations with clarity, fairness, and confidence.

Connect with Dean Benard:

On LinkedIn: linkedin.com/in/deanbenard/
Visit Benard + Associates: www.benardinc.com

Reporting platform:  https://confidentell.ca/

Connect with Amy Davies:

On LinkedIn: linkedin.com/in/daviesamy
Email: amy@first30ready.com
Visit First30's website: www.first30ready.com

HR Law Canada

Stay up to date with employment law news by subscribing to HR Law Canada: www.hrlawcanada.com

This podcast is produced by Storyphora, www.storyphora.com, info@storyphora.com

#coffeenlaw #employmentlaw #HRleaders #workplaceinvestigations #HRcompliance #leadership #organizationalculture

Transcript

SPEAKER_01 0:00

The reason why some of these investigations are not stellar is because the poor person who's doing it has a million other things that are their core job responsibilities, and this is something that's just been tacked on. It's important that organizations make the space. If you're going to do it internally, give the person the time and the resources to be able to do it properly.

SPEAKER_02 0:20

Workplace law is complex and constantly changing. It can be hard to keep up, and the risk of getting it wrong can be costly for businesses. The Coffee and Law Podcast is here to help HR professionals and employers stay informed. We'll cover what's changing and how to navigate real workplace situations and everyday people decisions. So grab your favorite warm drink and join us for engaging practical and educational conversations with top experts in workplace and employment law.

SPEAKER_00 0:54

This podcast provides high-level general information. The perspectives shared by our guests are for educational purposes and do not constitute legal advice. If you have a specific question or concern, please consult a qualified lawyer.

SPEAKER_02 1:10

Hi, it's your host, Amy Davies of First30, jumping in here to share some exciting news. First30's Onboarding Buddy platform has officially launched. Onboarding Buddy is an intelligent, AI-powered knowledge assistant that gives new hires instant answers using your company's own information. It's secure, Microsoft backed, and simple to launch. No IT lift or setup fees, and it integrates seamlessly with your HRS. So if you want a quick, easy, and effective way to improve your organization's new hire experience, I think this might be it. You can reach out to me anytime at Amy at first30ready.com. That's Amy at firstthenumber30ready.com, and I'm happy to answer any questions you might have and share a demo. Now, enjoy the show. I am, you know, I'm we're covering a topic that I absolutely, it's kind of one of those topics you shouldn't love, but I do love talking about it, especially with my friend Dean Bernard of Bernard and Associates, who I'm very happy was able to join me today. Dean, I know you have like the craziest, most hectic schedule, jumping off when you jumping out when you when your clients need you at a moment's notice. Um we had to reschedule this one today, but that really does, Dean, speak to how in demand you and your organization are. So I thought we would start. We're gonna be talking today about workplace investigations. We're gonna be talking about when do we need to investigate, and then we're gonna talk a little bit about how to investigate. And I know, Dean, it's we're we only have 30 minutes or so today. Um, so we're not gonna be able to cover nearly everything we need to cover, but hopefully we can scratch the surface. And I know you have an amazing course that our audience can look for as well. So I'm gonna make sure that is linked to the show notes, but I would love to hear a little bit from you. Just let everyone know who you are, what you do, and um don't worry about telling them where to find you because we're gonna make sure they know how to do that in the show notes.

SPEAKER_01 3:28

Okay, well, no, no problem at all. Thanks, Amy. I'm I'm really happy to be here. And uh, you know, I will always make time for something like this. Uh anybody who knows me knows that I love to share information and uh I love this kind of thing. Some people would say I've never seen a microphone I didn't love.

SPEAKER_02 3:41

So uh I'm definitely Hey, hey, no, a micro, you know, microphones love you too, Dean. So we're okay.

SPEAKER_01 3:49

So a little background. So so Benard and Associates is an invest primarily an investigation firm. We also do mediation work. Um, and we've been doing workplace investigation since 2004. Uh my background personally is a bit eclectic. I I have a uh some people say a bit of an odd background. My first career was nursing. I was a critical care nurse, then I moved from that to policing, I moved from that to regulatory investigations, and then eventually in 2004, uh started my business. So I'm really, I don't look it, but I'm about 100 years old uh with all of that background. Uh but uh yeah, we we do a lot of work uh with organizations to help them guide them through the investigation process because it's daunting for many organizations. Uh they want to make sure they get things right, they want to make sure that uh they're doing everything that is expected of them, and that's what we're there to do.

SPEAKER_02 4:40

And there's just so much more risk now, right? Because everybody's carrying a camera on them at all times as well. I'm sure you run, you bump into this a lot. Um, and so it's always been important for organizations to have integrity, do the right thing, investigate when investigations need to happen. But now it there's even more pressure because you don't know what kind of evidence is already out there and exists. But I might get us down a little rabbit hole with that.

SPEAKER_01 5:10

Yeah, no, you're you're absolutely right. And and it's interesting because I feel like I feel like um I mean, investigations is a growing area in the workplace. And a lot of that is is obviously stimulated by the fact that there's legislative responsibilities to investigate when certain allegations are made. So, you know, that alone has got organizations concerned that they are compliant, uh, that they aren't going to have, for example, in Ontario, the Ministry of Labor knocking on the door saying, you didn't investigate. They they everybody wants to be in compliant. Sadly, some organizations, particularly smaller ones, they don't even understand or know that they need to be compliant with these things. They they don't know anything about it. So um it is becoming, it's an area, I would argue, probably of highest risk in an organization. That that, you know, first, you don't want unpleasant, unbad things happening within your organization. Every employer has a duty to provide a safe, harassment-free workplace. And so no employer should want that happening in their workplace. Um, so for something like that to slip by and and not be dealt with can create even bigger problems than the challenge of doing an actual investigation.

SPEAKER_02 6:24

Yes, and the cost of doing an investigation, right? So let's talk about the very big the big topic of how does an organization something happens. How does an organization need say to themselves, okay, we do need to investigate this?

SPEAKER_01 6:42

That's a great question because I think uh a lot of organizations struggle with that. We we have lots of fancy terms we use when people bring forward a concern. So when you think about it, within an organization, investigation can happen a number of different ways. Uh, one can be someone comes forward, files a complaint under the policy that exists, the whether whatever name you give it, uh they make you know, respectful workplace, harassment-free workplace, whatever. Someone makes a complaint, and it then the question is, well, do we need to investigate this? So, you know, they this the key is to have a good policy that helps outline exactly what should what steps should be taken. But when it comes to investigation, it's about doing a threshold analysis to understand, well, what exactly is being complained about? And one of the questions I always say to people is ask yourself the question, if this is true, we'll figure out if it's true later, but if this is true, would this be harassment? Would this be bullying? Would this be discrimination? And and if the answer to that question is yes, then an investigation is an absolute must. And and that, you know, that will make you compliant with the legislation, which demands that these investigations happen. Um, you know, so so I think that's a lot of the the ways in which an investigation will start. But the other way is when management or human resources discovers concerns that exist, but nobody's coming forward with a complaint. And so you're aware that there could be harassment or bullying going on within the organization or sexual harassment or discrimination, you've got, I would argue, a legal and moral obligation to deal with that problem and to investigate it. So that would be what we would refer to as the management initiated investigation. Just because someone, you know, you'll have people that will make the mistake of saying, well, nobody complains, so we don't have to investigate. But the reality is that once you become aware, it's a bell you can't unring. So you do need to investigate because you know, and that would be that, as I say, that management initiated investigation.

SPEAKER_02 8:42

So willful blindness will not make the problem go away, is what you're saying, right?

SPEAKER_01 8:48

No, it definitely will not.

SPEAKER_02 8:50

Yes. Okay, so something happens. You know, the the right people are aware that it's something something is happening. There's multiple ways that they can be made aware that something has happened. Um, so now what do they do next? How do they get that investigation started?

SPEAKER_01 9:11

Well, again, that they should have a policy that helps to outline what that looks like. And that's one of the things I I say to a lot of organizations, a lot of our clients, is say, let's take a look at your policy, because you know, some of them have some unrealistic expectations, like an investigation will be completed within two weeks, which isn't very realistic. So, you know, I that's a bit of an aside. But my point is first, let's look at the policy, let's see what the policy dictates. We know that we're gonna have to do an investigation, we've assessed it, we've determined that there is a threshold that's been met. Uh, so then it's figuring out who's gonna do the investigation. Is it a, you know, do we have the in-house capability to do it? Somebody that from HR or someone within the organization that can, you know, fairly uh fairness being the key point, uh, and neutrally do an investigation. If we don't, do we need to look outside and find somebody that we can bring in to do the investigation? That's the first step. Who's gonna do it? And then the next step is, you know, to actually engage in putting together an investigation plan. What do we, you know, I was saying these investigations are not rocket science. You know, the first step is we have to figure out what happened. So what questions do we need to ask and what questions do we need answered in order to understand what happened? And then once we understand what's taken place, the next step is does what happened, is that a contravention of a policy? Right? It's two steps.

SPEAKER_02 10:35

I have a question for you. So I used to work, and people don't know me as this, but like you, I've had uh a long history before I arrived here at this microphone. Um and I used to run research, both market research and employee research. And what I found was everyone thinks they know how to ask a question, right? And and I get why it looks so simple on the surface, but I can tell you, even the most, even the most simple of employee pulse surveys are far more complex and way more thought goes into how the questions are asked, when they're asked, et cetera, et cetera. So I bring that up because um I'm wondering if your experience, as much as I'm sure you have amazing, you've worked with amazing people, right? But people are not doing workplace investigations every day. So is your experience when you step into an organization who's already started an investigation, like, ooh, um, I think, you know, if we were to start this again, we might ask the questions differently. And and I guess the question is, what is the quality of the questions you're seeing asked or the process that you've seen once you get there and you're sort of getting into it?

SPEAKER_01 11:51

I I guess the best way to answer that question is I say I've I've seen the full spectrum. I've I've stepped into organizations that have done a workplace investigation and it's been stellar. It's been, you know, that whoever did it did a fabulous job. They understood, you know, exactly what questions to ask, how to gather the information, what it means. But then I've seen the the other side of it more often, I sadly, than than the stellar side, where there's huge holes uh in in the investigation. And one of the, in fact, one of the services we've started offering to people is if you don't want to spend all the money to hire us to do the investigation, maybe you should have us coach you through the investigation. So we'll help you make sure you don't make those missteps, like failing to gather information from certain sources. Um, I've even been uh retained as an expert to to provide an expert for court on whether or not an investigation met, you know, uh a standard, you know, an acceptable standard uh for an investigation uh that ensures fairness. And that's a lot of it. A lot of it too is is the issue of fairness. If you ask questions the wrong way, if you make assumptions, you're really uh starting to create at the very least an appearance of an unfair process and potentially without even realizing it, an actual unfair process. So these are we see this a lot in organizations, and I I don't believe that it's it's it's very rarely intentional. I I can't honestly say I've seen a situation where I'd say it was purposeful, um, but it definitely happens, and it happens because good investigators take courses and learn how to do it, but then there's years of experience that go with it. And without the experience and without the frequency of doing investigations, it's very easy to get it wrong.

SPEAKER_02 13:37

And you know what to anticipate. Every situation is different, but you've kind of been there, done that, you've seen a lot. So you know how to set up a system that's going to be protect everyone, protect the uh complainant if there is one, protect the organization, and document everything. I bet that is a big issue as well, is the documentation. Can you tell us a little bit about how HR leaders and employers should seek to document everything, all the discussions they're having?

SPEAKER_01 14:08

Yeah, no, that's a great question because, you know, I what I what I typically see, or what I often see, I should say, is where an investigator will have this sort of little table they've created in a document with a question and a space to answer it. And they've got their 20 questions and they're gonna ask their 20 questions. And, you know, whereas, you know, a real seasoned investigator isn't going to follow a script or list of questions, they're going to talk to the person and say, talk to me about what happened. They're gonna ask big open-ended questions. I think of it as a it's a funnel. You start with big open-ended questions and eventually you narrow your way down to the very specific ones. Documenting all of that within the interview, very important. Where I see the the misstep is the failing to document all of the stuff in between. How many times did I try to set up this interview? What was the nature of my discussion with the union representative before this interview took place? Because I'm always thinking several steps down the road. I might be in an arbitration or I might be in court where I'm going to be asked questions not only about what's within that investigation report, but I'm going to be asked questions about how that report came to exist and what were all the steps and things involved in creating that report. And so, you know, all of this stuff needs to be documented, all the email communications should be saved, uh, everything. Again, it's it's not overly difficult to do, but it's critically important that it be done. And, you know, organizations have to decide if they're going to do these things in-house, you know, where is that information going to be stored? Because we have to also be thinking about confidentiality. Not everybody in the organization should have access, or even everybody in HR should have access to this information. So these are all things that organizations need to be thinking about when they're conducting these things in-house.

SPEAKER_02 15:49

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SPEAKER_01 17:16

There's a few layers to that. Um, so you know, you will hear people say that, well, you know, it's it's not illegal, it's not a criminal offense for me to record somebody who I'm engaged in a conversation with. As long as I'm a party to the conversation, I can record it. But when you're taking on the role of an investigator, you have a, I believe, you have a higher burden, a higher uh standard that you must operate from. So no investigator should ever be recording any interview or any conversation without the express consent of the individual they're interviewing. Uh, we enter, we do record all of our interviews, but well, I shouldn't say that. We record about 98% of them because 2% of people will refuse, because we do always get consent from them. And uh, and so that's that's just critical. Um, as far as employees, you know, this will sometimes happen. We'll we'll I've gone into an interview, especially back in the days when we're face to face. I've gone back into an interview where somebody puts their own recording device on the table and turns it on. And, you know, I, as the investigator, will say, I'm sorry, but I don't consent to being recorded. And I make it a point in every interview I do to say, you know, I'm gonna record it, but you can't. And of course, people will immediately get their backup, but my, you know, I can explain why. And the reason is is that we have to be always thinking about the integrity of the investigation. The reason why I'm interviewing some interviewing somebody one-on-one is because I don't want all the information they share with me to be given to the five other people that I'm going to interview as witnesses for that case. If there's a recording out there, I can, I no longer have control over that information being shared. Now, is it being shared anyway? We certainly make it clear to people that we're interviewing, you know, this is a confidential process, nothing we discuss in here should be repeated or shared with anyone else. Do you agree to that? We get them, you know, we get them to agree to that. What they do outside of that consent or the outside of that agreement is up to them. We can't really control it. But we have to at least do the best we can to maintain the integrity of the investigation. So we don't consent to union representatives or uh employees recording the interviews. What we will do is say, when everything is over, when you know, when the when the whole matter is completed, if you want to have your recording of this interview, you can have it then. When everything is that that would be like post-arbitration, post everything. Um, you know, we will do that, but we do we do feel like we have to maintain some level of control over the information that's being gathered.

SPEAKER_02 19:53

Now that brings up a question that I have, and I'm sure that our audience would have, is I have collected all of this information, I'm doing all of these interviews, and now um, who am I obligated to share this file with maybe before the case is closed and then after the case is closed? Because if I'm maybe the complainants comes to me and says, Oh, I want a copy of all of the evidence that's been collected or the file that you're working on to investigate this case. So can you give us a little bit more information around what we can share, when we can share it, and what we're obligated to share?

SPEAKER_01 20:34

Sure, sure. So again, depending on your jurisdiction, there will be certain requirements. So I'll speak to Ontario since that's where most of our work is done. Um, and what I can say about that is that under the legislation, you are required to share the outcome, to share the findings of an investigation. And, you know, you're required also to this this would go beyond the investigation, but you're also required to share not necessarily specific information, but but you're required to share that that steps were taken to rectify the situation. So, you know, if there was uh a case where behavior was substantiated, then you also have to share the fact that something was done about that. But nobody is entitled to receive the actual report. There were, you know, and and I recommend to clients that the report stay in as narrow a circle as possible. Now that will change if a case goes to arbitration, for example. So pre-arbitration or pre-court, right, then that report should stay really in the hands of the investigator and the parties responsible for evaluating that report and making decisions connected to it. And that is it. Nobody else should get that report. And the reason I the reason I emphasize that is because once that report is out there, it's out there. And a lot of times in an investigation, people will share information, sometimes sensitive information. And I think we owe a duty to everybody involved that there not be some document in a Hands of someone that we can't control. You know, how do we know that three years down the road, I can tell you a story about a client who actually had uh an investigation done. I did the investigation, I provided, and they had a policy that the report would go to both parties. And sure enough, that report ended up being copied and ended up in the mailboxes of every other employee in the organization. And, you know, again, a whole other issue to deal with, but I think that we owe it to have some control around that. So, so that that information should be kept very, very in a very narrow field of people.

SPEAKER_02 22:35

If uh if it does go to court, um, there would be probably an obligation to disclose it to the complaint's uh legal counsel, correct?

SPEAKER_01 22:45

That's right. That's where everything changes. Okay. Once we go to then we have the rules of disclosure that apply, where yes, we would have to, you know, they would request state not only the report, but they would request all the interview notes or interview recordings and all of that information. That's why it's so important to keep close track of all this stuff and keep it well documented because when it gets that point, you're gonna have to give it all over as disclosure.

SPEAKER_02 23:10

Listen, that is where your clients are breathing a sigh of relief that they engage Bernard and associates because they know that everything is gonna be so tidy and perfect uh and and delivered exactly as the court expects, correct?

SPEAKER_01 23:27

We try, we try our best.

SPEAKER_02 23:29

Yep. I've heard good things. Um, okay, so I always am curious about when a complaint comes forward, a complainant comes forward or there's an issue and involves a senior leader in the organization. And this would be someone who, as you've kind of hinted at, has access to everything. Like, what is an HR professional meant to do in that situation?

SPEAKER_01 23:56

That's a that's another great question. It's it's important, I think, that to recognize that, you know, first off, nobody in the organization should be above being investigated if their behavior or their the you know how they conduct themselves is called into question. I think it's a bit unfair to ask somebody who's, for example, maybe an HR business partner or an HR, even an HR generalist or somebody and even the HR manager or director to investigate their CEO, for example. And and I think that that's when it becomes, I think, far more appropriate to outsource that investigation so that that, because you know, if you outsource that to me, I don't owe that CEO anything. I'm not, I'm not, I don't have skin in the game in that respect. So my job is to get to the truth, and I'm gonna get to the truth. So it's gonna give everybody involved in that investigation much more confidence that there's an independent investigation happening and there's not some bias, whether whether it be, you know, purposeful or not. Um, it's very it's it's a difficult position to put uh, you know, somebody junior in the organization compared to the CEO or a vice president, you know, in that position. So I think that's that's where we often get a lot of investigations that are outsourced to us, um, even within organizations that have an investigator, a dedicated investigator in-house, when it gets to that level, it goes, it goes out. And uh, and that's important.

SPEAKER_02 25:24

Well, I'm kind of cringing inside because I'm imagining I've worked for small businesses, I've worked for large multinational organizations. And I would just hope that if that landed on my doorstep as an HR professional, that I was in a large multinational organizations, organization with several layers and not an organization with 15 people. Um, and then we have to launch an investigation into the owner of the business, right? Because there's that's the Wild West at that point. I mean, it it can land in court just like every other case, but at the initiation, it is going to be like the Wild West because they're not gonna have the same processes and protocols and layers and resources of a large complex organization.

SPEAKER_01 26:14

Yeah, exactly. And there's a lot of organizations too that, you know, it's not always somebody who's senior in the organization. Sometimes it's somebody who's a real impact player. And there's sometimes a reluctance to pursue an investigation simply because of that. So, you know, it's a very awkward position to be in. And organizations have to think very carefully about who they have handling these matters, those situations.

SPEAKER_02 26:38

I really want to know this one as well, because I think this is something organizations deal with a lot, and you've talked a little bit about it, but an anonymous complaint comes in. Now, what do I do?

SPEAKER_01 26:50

Yeah, I know that that's the one that really um that really bothers people because you know, an anonymous complaint could be a malicious complaint. Uh, it could be it could be a very legitimate complaint. And I think that the first thing I would do if I was in the shoes of the person in HR who's received this, is the first thing I'd be asking myself is, you know, if I'm being very honest with myself based on my experiences with this organization, does anything about this, is there anything about this that where this makes sense where where I think that this this could this could be legitimate? Regardless, it's something that it still needs to be dealt with. And I think that a lot of organizations struggle because, you know, if someone says, for example, they they submit a complaint that said, I I want to complain that so-and-so in shipping and receiving is being bullied by all the other people in shipping and receiving. So what do you do with that? Or it could even be something more vague, like somebody, somebody in the in shipping and receiving is being bullied. So, you know, you have to come up with a plan for how you're going to look into that. I don't think it's appropriate to ignore it. So the next step would be well, maybe we can, and this is where HR has to be, you know, thoughtful about it, but maybe we make some some preliminary inquiries. We don't necessarily launch into a full-blown investigation. We don't even know who we're investigating, but maybe we launch some preliminary inquiries where we just try to make some observations, maybe talk to the manager of that particular department, see if we can find out, you know, what might be happening uh within that department. And then with every little piece of information, it will inform the next step. We've created a whole separate company to deal with this because organizations really struggle with it. So one of the things is we create a company called Confidentel. And what Confidentel is, is it's an anonymous portal. Now, these portals exist. Typically, they're just a technical solution where you know someone can make an anonymous complaint and it lands on someone's desk at the organization. Whereas what we've said is why don't we create a portal where people can make an anonymous complaint, but it comes to us, and then we ask that person questions while they maintain their anonymity in a space where they're comfortable because they're not dealing with anyone at the organization, they're dealing with a third party independent. A third party. And then we ask them questions to because a lot of times we can just discover what we need to do by getting just a few questions answered, but you got to be able to ask the questions. So the portal allows that person to maintain their anonymity and to speak to somebody who's a third party. Then we can put it all together in a package, give it to the organization, to the appropriate person in the organization. Because, you know, what if the complaint's about the CEO? Well, then it probably should be going to the board or going to external legal counsel. So, so in those cases, we can make sure it gets to the right person and we can give them some options for how they might wish to, you know, to deal with it moving forward.

SPEAKER_02 29:47

And we'll make sure that we link to that resource in the show notes as well, Dean. Um, now we're running out of time, but I just want to make sure that there's anything that you're like, oh, I I wished Amy had asked me this question, or this is something our audience really needs to know. Is there anything that I that's kind of burning that I missed that I should have asked?

SPEAKER_01 30:06

Um, no, not really. I mean, again, in the time we have it's pretty hard.

SPEAKER_02 30:10

We could talk for this about this forever.

SPEAKER_01 30:12

We could, we could. There's lots of things we could talk about. Um, I uh I, you know, I think what the the key thing to think about when it comes to investigations is you've got to make them a priority. This shouldn't be something that someone's doing off the side of their desk when they've got a million other responsibilities. This is one of the big issues that I see is the reason why some of these investigations are not stellar is because the poor person who's doing it has, you know, a million other things that are their core job responsibilities. And this is something that's just been tacked on. It's important that organizations make the space. If you're going to do it internally, give the person the time and the resources to be able to do it properly.

SPEAKER_02 30:49

And always be prepared for when something like this comes up. That's why I love the idea of taking your course. If I was an HR, I certainly would do that, because then you've you've kind of done the hard work before the difficult situation presents. You're not scrambling trying to take Dean's entire course in, you know, in a weekend so that on Monday morning you're an expert on investigation. So get ahead of the issues, set people up for success and make sure that people have all of the information and the expertise they need available to them before something this happens. Okay. So thank you so much, Dean. We have one last little segment. Um, and I'm sure you have again a million stories you could tell, but we have our little spill the tea segment. So is there a story that you can share with us or an experience? It could be funny, it could be serious, whatever you want. Um, but we love to spill little tea on uh coffee and law.

SPEAKER_01 31:44

You know, it's funny. I knew I knew this question would be coming because I've I've watched previous episodes, and I I thought to myself, I was I I have a million stories I could tell. I bet. So I'm so concerned about confidentiality. So rather than a story, I'm gonna let you in on a secret.

SPEAKER_02 32:12

Okay, I'm ready.

SPEAKER_01 32:14

Okay. Well, the secret that I want to share with you is that most organizations already know who the problem is before the investigation even starts.

SPEAKER_02 32:24

That is so you you've got that. I I agree with you there.

SPEAKER_01 32:29

Yeah, like I mean, I'm you know, I've seen many investigations unfold, and you know, particularly the dramatic ones, what's shocking isn't usually the behavior. What's shocking is that as the investigation unfolds, people are like, oh yeah, yeah, no, and yeah, well, you know, I knew about that. I have this thing about investigations. I always say to people that that, you know, there's three, there's three people involved in a harassment complaint, or three groups of people, let's say it that way. There's the alleged harasser, there's the person who's making the complaint or the victim, and there's the watchers. And the watchers are the reason why these things continue to happen. There's always a whisper network happening within organizations, and people know, oh, that's just how that person is. Um, you know, that person's brilliant, but they're difficult. And the problem is that everybody ends up adjusting around the behavior instead of addressing the behavior. And so small things end up exploding. Small things become big things because nobody's dealing with it. So now we end up with this formal complaint that needs to be investigated, you know, possibly Ministry of Labor, lawsuits, all kinds of grievances, all kinds of things, because really nobody's dealing with it. And so the real T, if I if I'm gonna continue with that analogy, is that investigations don't typically uncover, you know, villains, they expose tolerated patterns. Sometimes it's things like you know, I've had cases where somebody who's the top salesperson in the organization, 40-50% of the work that that organization is doing is because of this one person, but they are a serial sexual harasser. And I've literally had cases like this where the organization has resisted investigating for ages, then suddenly it blows up. We come in and do the investigation, obviously, you know, and I again everybody gets a fair process. So it's not like we're pre-concluding that people are bad and doing these things, but again, this is often what we learn after the fact. We gather all the information, it's it's a case that's very, very clear that this person's been engaging in this behavior, and the organization still wants, you know, they they they don't want to get rid of them because they're too valuable to the organization. So, so you know, I'm not saying I think most organizations do the right thing, but my concern here is that when we turn a blind eye to behavior because somebody carries a certain value or carries a certain amount of authority, right? Or maybe people are just intimidated and don't want to be involved. When we allow that type of thing to happen, then small things become big things and big things become investigations. And in the end, it costs the organization a lot more money. So, you know, this this is the to me, this is the real underbelly of this kind of work, that that we could be doing so much more on the prevention side, you know, and and I think organizations really need to start turning their attention to how do we prevent the harassment complaint, right? And if they do that, yeah, they'll invest some resources to it, but they'll be a lot better off in the long run.

SPEAKER_02 35:42

And they're losing other talent as a result of that. But I mean, this can just go on and on. It's such an important point that you've brought up now. Um, we could have a whole other episode just on this, and maybe we will one day. I used to always, I used to often talk about um why bullies get, I'm gonna call them bullies. I know that there's probably more extreme language we can use around it, but bullies get promoted in organizations and what are the the patterns that get them to where they are, and what are their behaviors that make them look committed versus and the enablers that make all of this happen, and you know, and what a company could do is implement the system you have and then get a lot of complaints through that and start understanding what's what is in we can read the tea leaves. Yeah, let's say it that way. We're spilling the tea, let's read the tea leaves, everyone now.

SPEAKER_01 36:36

Yeah, exactly. I think I think that kind of approach is what will allow a company to not only talk about integrity, but to demonstrate integrity.

SPEAKER_02 36:45

Well, listen, uh Dean, we'll have to you'll have to be a regular because there's just so much to talk about when it comes to workplace investigations. Even before we recorded this, I had someone request this topic as well. Um, so I want to thank you so much for taking the time. Um, that is very precious to you and to your clients to spend a little time with us here at Coffee and Law. And uh I also want to mention once again, I have a guest on the show recommended by Nina Gutha. I mean, you were recommended to me many years ago. We've since become friends, and uh I'm very happy for that. And you're such a great person to have in my network, a great supporter and a person that I love to advocate for as well because you do such great work.

SPEAKER_01 37:29

I'm blushing with all of that. I bet, I bet. You know, it's been an absolute pleasure, Amy. It's always I love having a conversation about these things, and and uh and it especially with good friends, and and and hopefully people will uh will find some benefit from all of this. So thank you.

SPEAKER_02 37:45

I'm sure I have no doubt they will, and I want to thank you and thank you so much, everyone, for joining us today. And we will see you at the next Coffee in Law.