How to Overcome Bias in Workplace Investigations - Cheryl Otto

Cheryl Otto is the Founder & CEO of OOPS – Ounce of Prevention Solutions and WIN - the Workplace Investigator Network. She is a happily retired lawyer and an industry expert in Canada in the art of workplace investigations. 

Over her 25-year career, she’s conducted 100’s of workplace investigations, consulted on numerous high-profile cases, and has trained over 1000 investigators. And she's a leading expert on the topic of creating respectful workplaces.

Together, we tackled a challenging topic - workplace investigations. Challenging because the topic can be quite controversial. The truth is the majority of people involved in investigations don't have a great experience. They’re not particularly pleasant. And whether you’re a complainant, witness or respondent - investigations can strain relationships. All the more reason to ensure they’re conducted fairly and with respect. 

And so in our time together, Cheryl and I tackle a number of subjects: how you address complaints regarding high-performing or senior employees; how to identify and overcome bias. And the importance of ensuring humanity in the investigative process. 

Whether we like it, or not, investigations occur in every organization. While most of us come to work with the best of intentions, things don't always go as planned. So we need to create a safe space for people to bring forward their concerns to realize inclusive, respectful, diverse workplaces, where everyone can feel welcome, supported and ultimately safe.

Cheryl Otto

Cheryl is the Founder & CEO of OOPS – Ounce of Prevention Solutions and WIN - the Workplace Investigator Network. She is a happily retired lawyer and an industry expert in Canada in the art of workplace investigations. 

She has conducted 100’s of investigations, consulted on numerous high-profile cases, and has trained over 1000 investigators in her 25-year career. Cheryl has served as a subject matter expert to media outlets, the legal profession, industry conferences, and has refined the workplace investigation process over decades.

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Transcript

[00:00:00] Guest 1: [00:00:00] We never want to see a, you know, an organization do what we call or the courts are calling a sham investigation, right. Or a [00:00:10] checkbox investigation in the sense of, well, this is what our harassment policy, our respectful workplace policy says we need to do. So we're just gonna, we're just [00:00:20] gonna do it quick.

[00:00:30] Matt: [00:00:33] Strengths drive innovation. Hey everyone. It's Matt here for another episode of thinking inside the box, [00:00:40] the show where we tackle the most complex issues related to work and culture. If you're interested in checking under other content, you can find us at bento, hr.com, [00:00:50] wherever you find your favorite podcasts by searching, thinking inside the box.

And now in virtual reality. Each Thursday at 6:00 PM. Pacific standard [00:01:00] time in alt space VR. In today's episode, I chat with Cheryl Otto, the founder and CEO of ounce of prevention [00:01:10] solutions and the workplace investigator network. Cheryl has spent 25 plus years as an employment lawyer, specializing in human rights, law and [00:01:20] workplace investigations.

Now happily retired in beautiful Colona, British Columbia, Canada. Which as an aside is one of my favorite places on the [00:01:30] planet, nestled between orchards and vineyards and a number of pristine lakes. So Cheryl has the right decision to live in there. She's an expert and an industry leader in creating [00:01:40] respectful workplaces and conducting workplace investigations.

And today, together, we tackle a challenging topic and that is the topic of workplace [00:01:50] investigations. It's a topic that I've been reluctant to discuss previously, because it can be quite controversial and controversial [00:02:00] because whether you are the investigator or the complainant, a witness or the respondent, the truth is of the majority of people involved in [00:02:10] investigations.

Don't have a great experience. It's not an enjoyable practice for anyone to be involved with. And an often can really strain relationships. [00:02:20] But that being said, I want to bring, share, launch, discuss that topic because we can do things differently. Things can be better. And so [00:02:30] we tackle a number of subjects, everything from the importance of being qualified as an investigator, what that means, what does that process, the [00:02:40] importance of.

Delineating a small eye investigation. So perhaps something like a complaint or a concern that probably shouldn't become a formal [00:02:50] investigation from those that are big. I investigation. So ones that definitely required a more structured approach and review. We talked about the importance of due process that [00:03:00] everybody in the investigative, you know, machine, if you will, needs to be treated with respect and given equal audience.

We tackle some complicated topics related [00:03:10] to how you address complaints regarding those rockstars, those high performing highly influential people in organizations and how we tackle those [00:03:20] situations. We talk about overcoming bias, which whether we won a minute or not, we all have it. So how do we steal it in service to creating a good experience and a [00:03:30] great thoughtful, pragmatic investigation?

And we wrap things by discussing the importance of ensuring humanity in the broader investigative process, [00:03:40] investigations are a necessary part of any small, medium and large organization. While most of us come to work with the best of intentions [00:03:50] things, don't always go that way and we need to create a safe space for people to bring forward their concerns and know that they're being heard.

And we also need to give counsel to people [00:04:00] that are the subject of those complaints and concerns so that they're being heard. And ultimately we need to weigh all the evidence available to us to ensure that we make the best [00:04:10] decision for the organization, that we create inclusive, respectful, diverse workplaces, where everyone can feel welcome, [00:04:20] wanted, and ultimately safe.

And therefore this topic is really key in helping us unpack that. And to chart a path forward for a [00:04:30] more humane, respectful, and ultimately fair process. So without further ado, share a lotto. Hello, Cheryl, how are you doing today? I'm 

Guest 1: [00:04:39] doing well, [00:04:40] Matt. Thanks for having 

Matt: [00:04:41] me. Thanks for stopping by. And, um, for those who don't know, Cheryl auto, maybe tell us a bit about yourself.

Cheryl 

Guest 1: [00:04:46] Otto. Well, she's a complicated base. [00:04:50] So anyway, so I may happily retired lawyer. Um, I am the founder and CEO of two companies. One is called oops, ounce of prevention solutions, [00:05:00] and the other is called win. Uh, the workplace investigator network. So for, uh, over a few decades, I'm not going to date myself, but, uh, I've been working [00:05:10] in the area of, uh, workplace conflict and resolution.

And one of the, sort of the, the mainstays of our practice is workplace investigations [00:05:20] and, uh, you know, helping clients and employees move forward. Um, you know, when. Things happen in the workplace that are about so great for them. So, yeah. [00:05:30] So I've been doing that quite a while. And so, yeah. And when is my new baby?

So, uh, the workplace investigator network is a place where workplace [00:05:40] investigators can go to, um, join a professional, right? Okay. Online community and where we can all sort of hang out and chat and learn from each other and [00:05:50] be a resource to each other. So, uh, we're trying to sort of get that going in Canada.

So that's who I am. Uh, so I'm busy. 

Matt: [00:05:57] Yeah, it sounds like. And I mean, I [00:06:00] think it's an interesting topic because I mean, let's be honest. When we talk about workplace investigations, it doesn't feel people with a bunch of warm fuzzies in the inside. And if you've had a chance to be part of an investigation, whether [00:06:10] you are the investigator yourself, or you've been part of the investigation as a witness, or even potentially as the respondent, generally speaking, we're not going for employee engagement.

Um, [00:06:20] and that it can be a very challenging emotionally turmoil in the process. And. At the same time. I think it's incredibly important topic to [00:06:30] discuss because, you know, as we talk about things like due process and the qualifications of an investigator, I think it's really important that we, we better [00:06:40] equip the people who are tasked with doing investigations.

We better prepare people who are part of investigations so that they can be more humane. They can be more respectful and [00:06:50] ultimately be more successful. So. To that point, you know, I've had a chance to do a number of workplace investigations over the course of my career. And I'll say [00:07:00] that I received very little training when I began.

It's one of those things where I did some shadowing with some, with some talented people, some experienced people, but really didn't focus on [00:07:10] qualifications because there really wasn't. Reinforced or stress as being that important. Um, what are the qualifications of a really good investigator? Um, and why is it [00:07:20] important that investigators have these qualifications?

It's a great 

Guest 1: [00:07:22] question. And, uh, I think for a long time, uh, that. That people sort of, you know, just hung up a [00:07:30] shingle and said, I'm a workplace investigator. That wasn't good enough. And so now, because of litigation, uh, you know, people are looking at the fact of [00:07:40] whether they have qualified and I, and I think we all also want to add the term.

Competent because sometimes that always doesn't go together. So, um, in, in order [00:07:50] to become a qualified investigator, it's interesting because we have no professional association that makes, uh, makes investigators, you know, uh, have the [00:08:00] appropriate call qualifications and certifications. So we've as a community kind of just, uh, developed it ourselves.

And so there's a few, you know, there's [00:08:10] a few companies that offer, uh, investigator training. And so that's really a good start because it gives the people, the basics of what it takes [00:08:20] to be an effective workplace investigator and, um, you know, how investigations are supposed to go and what is the process around it?

And, um, I know our [00:08:30] company is one of them, but there's, you know, many companies across Canada that, uh, do the training. And so I think that's always sort of the first step. And so a lot of people who have [00:08:40] taken the training, uh, would say, you know what, this is not my jam. Like I can't, I'm not going to be able to do this.

And so, you know, it's really important even with, uh, [00:08:50] internal investigators, that people are comfortable even actually doing an investigation because you don't want people who are. Not comfortable doing the investigation. [00:09:00] So, you know, and the thing with investigations is, is it takes practice. It's like any other profession, right?

It's, it's, you know, it's the, the time and the [00:09:10] job that you're doing. And also, you know, I think what's. So what's maybe lacking is a continued professional development. And so, uh, you know, just [00:09:20] one, you know, one, one or two or three-day course does it does not set you on the right path. So I think, you know, ongoing professional development is, [00:09:30] uh, is critical for, for folks who are going to be doing workplace investing.

Matt: [00:09:34] Yeah. I couldn't agree with you more. I mean, the world without. You know, stating the obvious is, um, is [00:09:40] changing rapidly and whether it is, you know, the social constructs that we're operating in. And certainly now this pandemic, that's the backdrop of our lives over the last 12 plus months has changed the circumstances of how much we [00:09:50] do things.

Uh, but one thing that's endured in the 20 years I've been doing investigations is that. They're always complicated because when you're dealing with people, [00:10:00] they have nuance and there's levels of objectivity and subjectivity. Uh, so I mean, it it's inherently a challenging exercise. And I agree with you as, as [00:10:10] investigators are building skills and working with new generations and working under different constructs and constraints, you know, a level of upskilling is really, really important to ensure that you do it well.

[00:10:20] But for those maybe Cheryl who aren't familiar with the basic framework of an investigation, could you just talk us through the, you know, the high level steps that, you know, you think [00:10:30] comprise every investigation, regardless of whether or not it's a, a small investigation or perhaps a larger investigation?

Guest 1: [00:10:36] Sure. That's a great question. So, I mean, it usually starts with a [00:10:40] complaint or a concern or an issue that is brought forward with, uh, by an employee. Right. And so what we want to do is we want to determine sort of, uh, how are we going [00:10:50] to maybe resolve this and move this forward? And so I think that the, you know, like I always say that we should have a triage system in the sense of.

Does everything need to be an [00:11:00] investigation. So I'm so triaging it. Can we informally resolve it to the satisfaction of the parties involved in the issue? If not, [00:11:10] w you know, we're going to go maybe to an investigation, what does that look like? Well, our process, uh, that we usually sort of recommend to your clients is that there be a formal written [00:11:20] complaint.

So that the person who's complaining about the alleged behavior or, um, it, you know, basically puts in a paper in the sense of, you know, [00:11:30] who's doing this to me and where did it happen and when did it happen and how did it impact me? And then we, then we would ask for a written response [00:11:40] because, uh, we feel that obviously due process is important in these types of investigations.

And so we want to make sure that everyone is treated fairly. And [00:11:50] respectfully. And so we would want a written response, uh, from what the responded basically saying, you know, whether they agree or they disagree with what the complainant [00:12:00] has said, you know, once we sort of collect the, the written documentation.

Then we can proceed with the interviews and the interviews will be [00:12:10] the complainant, the respondent, and any witnesses who may be important to give information on the relevant issues. And, [00:12:20] uh, so not everyone should be a witness. So. You know, she, you know, it doesn't have to be your neighbor who, uh, you know, your kids play soccer knows what, how great you cook [00:12:30] make cookies.

Right? So it's not character witnesses. It's people who have relevant information to the issues at hand. So once we've done that and we've collected all the [00:12:40] relevant information documentation, Um, then usually a report is made and the report will basically say here's what our process was. Here's what we did.

[00:12:50] Here's the evidence. And here's our findings. So what was the, or say it's a bullying complaint was, did, did bullying happen and does it breach the policy? Right [00:13:00] or, and, or collective agreement. And so, and then sometimes we make recommendations and those are usually sort of restorative type recommendations, not punitive [00:13:10] recommendations that's for the employer to do, um, internally, uh, it may be a different process with an internal investigator.

They, they may be judge a [00:13:20] lawyer, judge and jury. So, uh, they may be doing everything even the decision-making as to what's going to happen. If there is a breach, right. So that's sort of the normal [00:13:30] course of an investigation. You know, obviously it's a fluid type thing, but that's usually, uh, the consistent process that we like to use.

And we encourage, you know, our [00:13:40] clients and employers to use 

Matt: [00:13:41] a number of really important things there. And I think, you know, in particular with in-house investigations where we're not accessing a third party like yourself, [00:13:50] sometimes there's a tendency to. Skip by steps. There's a tendency to want to accelerate the process, to get to a resolution.

Um, you mentioned due process [00:14:00] the need to provide an equal audience to all the parties involved, the complainant and the respondent. Talk to me a bit about due process and you know, why it's [00:14:10] important and how do you ensure as an investigator or in the broader investigation that due process 

exists? 

Guest 1: [00:14:16] Yeah, I mean, do, do processes are kind of like [00:14:20] gold, gold standard, right?

We want to make sure that due process is always followed and you know, that those are the principles of fundamental justice, which, you know, sort of [00:14:30] go back to, uh, go back a long time. So we won't get into all that last stuff. But, uh, you know, due process is very important because you know, we're expected [00:14:40] as an investigator to be neutral.

And unbiased. And so we want to make sure that we ensure due process is followed [00:14:50] in every step of the investigation and that we're transparent in what we're doing. You know, our job is to, is. Is not to believe someone, but to [00:15:00] assess their credibility. Right. So someone's going to, so the complainants going to tell a story, the respondent's going to tell a story, the witnesses are going to tell a story and all of [00:15:10] that.

Hopefully it's going to come together, but that usually doesn't come together if we don't follow due process. And you know, like I said before, due process is about making sure that everyone [00:15:20] is treated equally and that everyone. Is able to have their say and have their time. And so that's why, you know, interviews are so important.

And [00:15:30] you know, one of the things that we see sometimes is that, you know, and I understand this and internal folks are busy, right? Sometimes they're doing investigations off the side of their desks. And [00:15:40] they, they, they just don't have the time that externals do to do this. And sometimes, you know, they, they don't follow the right process.

Um, and then it sort of wraps them up at the [00:15:50] end of the day, in the sense that, you know, they may have not made the right decision because they didn't complete the process in its entirety. And [00:16:00] so, you know, we never want to see a, you know, an organization do what we call or the courts are calling a sham investigation, right.

Or checkbox investigation in the [00:16:10] sense of, well, this is what our, you know, harassment policy or respectful workplace policy says we need to do. So we're just gonna, we're just going to do it quick. Right. [00:16:20] And, uh, and see what happens. And so, um, you know, like if you don't, if you don't do it properly, Then you may not get the right decision.

So I have a great example [00:16:30] of that is, uh, you know, one of the big sort of tenants in investigations is to be trauma-informed right as an investigator. And if you're not trauma informed, you may [00:16:40] miss a lot of the really important things that happen with, uh, witnesses and the complainant and the respondent in an investigation.

So we did a [00:16:50] re-investigation, um, Where, uh, the first investigator did not use a trauma informed approach on a sexual assault case. And, um, basically [00:17:00] found that, uh, this person, uh, the complainant was not telling the truth. Um, and so the decision went in the favor of the respondent. So we, when [00:17:10] we went in to do the re-investigation, uh, we used, uh, we always use a trauma informed approach and, um, The decision was a hundred percent different.

So our [00:17:20] decision was in favor of the complainant and that we did find that it happened. So, uh, it's, you know, it's really important to, to be trauma-informed when you're doing [00:17:30] investigations, you know, and that goes back to the due process. Right. Are you, are you doing. Everything you should do as a competent and qualified investigator to make [00:17:40] sure that this process is fair for everyone.

Matt: [00:17:43] The, the trauma informed piece is a really interesting piece and you've referenced a very specific case where in the first [00:17:50] investigation that wasn't a familiar agency, they were found in the favor of the respondent. So there was no finding of sexual assault, but then you, when you went into applied the trauma informed approach, you [00:18:00] actually found the opposite result.

I'm curious as you define that, what. Comprises a trauma informed approach to investigation. 

Guest 1: [00:18:08] She that's a loaded question that, [00:18:10] um, and that's a whole day topic. Uh, but I mean, being trauma informed is being really aware that people have, [00:18:20] or may have experienced trauma in their life. So, you know, for example, when we're dealing with a sexual assault, you know, that may have happened, you know, yesterday or two weeks [00:18:30] ago.

Um, there's a different way to approach people right too, because when people experience trauma, their brain operates differently. Right. And so we're not [00:18:40] going to go into the science of all that, but just being aware. Of, uh, especially, you know, if there's sort of violent incidents, if there's a sexual assault [00:18:50] incidents, um, you know, any kind of those, uh, you know, but the assumption is, you know, that a lot of people have gone through trauma.

And so, so given that [00:19:00] assumption, how do we deal with them? Well, we deal with them respectfully, right? And we, we let them tell their story. We're we're not. We're, we're not police [00:19:10] officers. We're, you know, we're, we're not there to hammer out the truth. We're there to get their story. And however long it takes them to get their story in.

However, it is [00:19:20] comfortable for them to take, you know, to give their story. That's what we want to do. Um, you know, there's a different line of. Questioning that we, you know, that we may want to use with them. [00:19:30] Um, so for example, you know, a lot more open-ended questions and a lot more, you know, so for example, a sexual assault cases, you don't want to say, um, you [00:19:40] know, you don't want to sort of put them to task all the time, you know?

Well, why don't you remember this? It's always the, the question is always what. And w what do you remember [00:19:50] next and what happened next? So you want to be able to get the, get their story, however, it is most comfortable for them. So I'm [00:20:00] not going into so much detail, Matt, but, um, you know, trauma-informed is a.

And tr using a trauma informed approach is, is, uh, is really critical. [00:20:10] And I would say that's almost the number one qualification, uh, for an investigator when they're starting 

Matt: [00:20:16] out. No, and I appreciate you appreciate you answering that question the way that you did [00:20:20] because you're right. It, it's a very complex topic.

And then there's lots of nuance depending on the situation that's present. But what I took away from your explanation was that it's more or less just [00:20:30] providing a safe place. For the truth to come out. And the intention that you put into the investigation is one of curiosity, [00:20:40] one of care, one of concern.

And to your earlier point, it's not about conducting an interrogation. You know, one thing that I learned through the course of my career was, and let's be honest in a lot of [00:20:50] cases, um, a lot of workplace investigations, the end result of the investigation, isn't the separation of employment. It isn't the, you know, the, that, that very, you know, [00:21:00] drastic step at the end, more often than not the parties that are part of that comprised the investigation remain together in the workplace.

And it's really important that we take a step back and look at [00:21:10] the broader picture and ask ourselves, what kind of culture do we want to keep in the organization? Um, we can't suspend, you know, doing the right thing. We can't suspend the [00:21:20] respectful treatment of people in our organization because they're part of an investigation and.

Your approach around trauma induced, um, you know, interview investigation, approach [00:21:30] and investigation style, I think speaks to that in that you're trying to preserve the relationship and give people that the care and respect and due process that [00:21:40] they deserve as part of the investigation. 

Guest 1: [00:21:41] Yes. And, you know, it's really interesting.

We just finished an investigation and we usually never get a thank you from the parties. Cause, [00:21:50] I mean, you know, like you said before, it's, it's never a great process, right? Um, it can be very, just, you know, destructive, dysfunctional for the workplace. Um, and [00:22:00] we actually got a thank you from the respondent who basically said, you know, thank you for listening to me.

Thank you for treating me respectfully, um, [00:22:10] and, uh, listening to my story. So that was really a nice, a nice kudo for us because we never get, get, you know, kids in here that from the parties. [00:22:20] So, um, you know, and I think that sort of shows that if you use a trauma. Armed approach, right? Uh, that, that that's the result that you can get [00:22:30] as an investigator.

So, you know, one of the things I always say to the parties is I'm not here to cross examine you. I'm not here to trip you up. Right. I just want to hear what your [00:22:40] story is and ask you some questions and, and, and that's it. And that's what we're here to do today. And, um, and I think people, you know, [00:22:50] like that, because I think people are fearful when they go into an investigation.

Matt: [00:22:53] Well, we've all watched too much TV. We can confuse, we can confuse the investigative process as the [00:23:00] archetype of the interrogation room with the bright light shining in your face. And, um, the good cop, bad cop scenarios. And, you know, that is just that it's it's television. It's not the real life. [00:23:10] Um, and one thing that I think a lot of people may find surprising is that.

The process of a workplace investigation is very different than a [00:23:20] criminal investigation in a number of ways. Um, and one way in particular is the burden of proof. So in a criminal investigation, you [00:23:30] are, you know, if you're trying to convict somebody of a criminal crime of a criminal offense, um, you have to prove guilt beyond a reasonable doubt.

That's kind of [00:23:40] the threshold that we use to determine that in a workplace investigation, oftentimes we're using a different standard, which is the balance of probabilities, very different. And as somebody who is a [00:23:50] practicing lawyer and your pastoral. You're intimately aware of the nuance of that. I'm curious in light of our previous topic around trauma Doost approach to [00:24:00] investigations and the need to maintain respect in the workplace.

I'm curious if you could speak a bit about the nuance between beyond a reasonable doubt and balance of [00:24:10] probabilities and how that. Would shift the approach of an investigator knowing those differences. 

Guest 1: [00:24:14] Yeah. Uh, great question. Um, you know, and, and I think, you know, your point is bang on, [00:24:20] in the sense that, you know, people think that, you know, we're going to be banging on the table.

Like won't even answer answered question. And, uh, you know, that's, that's obviously not what a workplace [00:24:30] investigation is about. And so, uh, like you said, you know, our standard or proof is B is not beyond a reasonable doubt. Adult, which is a huge, [00:24:40] a huge burden of proof. Um, ours is on a balance of probabilities.

So really what that is is, you know, whose story is more plausible [00:24:50] than, than the other. Right. And so, you know, that's what we have to look at. So if we look at a scale, the scale needs to be 50.01. [00:25:00] That's it in someone's favor my team. We like to go for about 75% or 80. So we're very sure about our decision, you know, [00:25:10] so it's not, it's not a big, it's not a big per, uh, you know, standard approve in the sense of, you know, which way the, the scale is going to tip.

Um, [00:25:20] and it may be. You know, like a really small point that sort of goes in the favor of one of the parties, uh, you know, versus the other, uh, it, you know, it's interesting cause [00:25:30] people get sort of, uh, you know, they get bogged down in the balance of probabilities, but there's always a tipping point. Right.

And what is that? You know? And so what, why do you believe [00:25:40] someone over the other? And you know, one of the, one of the things that we look at is, you know, that person have reasonably known. That what the, that [00:25:50] they were saying or what they were doing would cause a fence intimidation, humiliation to someone else.

Right. And so that's sort of the test that we're, that we use when we look [00:26:00] at stuff that have thought that person to have reasonably known. And so, you know, we've all heard, uh, you know, respondents say, well, it wasn't my intention to do that. It wasn't my [00:26:10] intention, you know, for that to happen or for, you know, for that to have been said, or I didn't mean to do that.

And, you know, so one of the interesting things is that, you know, [00:26:20] intention in our line of work is not relevant. Right. Um, so intention does not negate impact. So even though someone doesn't intend it, we have [00:26:30] to look at the impact that it's had on, you know, our complainant and, you know, is there a negative or adverse impact?

You know, on that person. So going back to the test, [00:26:40] you know, should that person have reasonably to have known is the question that you want to answer when you're looking on a balance of probabilities.

[00:26:50] Matt: [00:26:53] Hey everyone, it's Matt here. I hope you're enjoying the show before we continue. I wanted to give a quick shout out to one of our [00:27:00] sponsors. Benji. The future of work is today. And Matt Parsons and the team at Benji have figured out a really cool [00:27:10] hands-on learning solution that you need to be considering as you transition your organizational learning and team building and engagement online.

Now I spend [00:27:20] several hours a day myself on video platforms. So whether it's zoom or Skype or go to meeting, they're great. They allow me to interact with people and [00:27:30] see them in all parts of the world, though. If you're like me, once those calls go on a bit too long, I start to get a little bit. Distracted.

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So I'm actually working right now with Matt one-on-one to [00:28:10] develop a journey mapping exercise. So we can take clients through the employee experience and aluminate thousands of dollars and hours of [00:28:20] inefficiencies that organizations tend to have in their onboarding and hiring processes. It's a great tool.

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So if you log on to the Benji website, which is my benji.com and you're as impressed with the solution as I [00:28:50] am, then enter the code in Benji 20 and you'll receive 20% off your purchase. And with that being said, we'll return back to regular programming. [00:29:00] Leopard the conversation, you referenced the idea of a triage process and presumably that's because in your experience, some investigations really [00:29:10] shouldn't ever start at all that a complaint may be raised or a concern may be raised.

That could be addressed outside of a formal investigative process, but some organizations may [00:29:20] default to that fearing litigation, uh, fearing reputational damage. How do you separate kind of those small eye investigations from the big guy investigations that do [00:29:30] require that more regimented, disciplined, structured 

Guest 1: [00:29:32] approach?

Yeah, it's, you know, that's really interesting because I would say probably. 30% of [00:29:40] the cases that we get called on our should have been, as I say, triaged in a different way. Right. And so what I mean by that is, you know, can we deal with [00:29:50] this in a more informal manner? And you know, one of the ways that we can do this is we always want to ask the complainant, the person who's coming forward.

To say, [00:30:00] well, what is going to make this better for you? Right? How are we going to move this forward? And so if the person says, you know, I just want it to stop. I just want this pit in my stomach, you know, to [00:30:10] go away. I want to get up every morning and come to work and be happy. Right. And so, you know, as an employer, I think we need to look at that.

And how can we achieve that? Is it going [00:30:20] to be achieved through an investigation? Probably not right, because an investigation will give you an answer, whether someone breached the policy, but guess what? At the end of the day, [00:30:30] we still have the problem that we still need to fix. And it's probably a hundred times worse.

So can we just triage it early on in the sense [00:30:40] of, can we resolve it early on and what might that look like? Well, it might look like. Uh, you know, some coaching, it might look like some in informal [00:30:50] mediation, it might look like a formal mediation with an external party. Maybe it's a facilitated conversation.

Uh, maybe at some training, um, you [00:31:00] know, have we looked at all of those options before? We do a big guy investigation and, you know, is that going to work? Are those [00:31:10] informal options going, gonna work for the parties? Right. And if that is that going to get them back to working respectfully and productively in, in the [00:31:20] workplace.

And so, you know, I always encourage, you know, employers to look at all of the options, uh, just because someone says they want an investigation [00:31:30] doesn't mean that it has to go ahead. Really what we should be looking at is, you know, how do we restore this relationship between these parties? How do we [00:31:40] restore.

You know, maybe a toxic work environment, you know, how do we, how do we do that is an investigation, you know, going to achieve our [00:31:50] objectives. And so that's one of the things I always ask clients is, you know, what are your objectives here? And, um, so, you know, and usually it always starts off with [00:32:00] Cheryl. We would like you to do an investigation.

And I would always say why. And they usually say, well, because our policy says we have to do an [00:32:10] investigation. So we have that. We have the conversation about, is there another way to maybe 

Matt: [00:32:16] resolve this interesting and sometimes challenging [00:32:20] situation that I've been faced with at a number of points in my career is a scenario whereby the investigation involves an individual in the organization that may have.

[00:32:30] A significant amount of influence or may otherwise be deemed as a high performer. A rockstar. Those situations are always tricky because it's a [00:32:40] difficult at times to separate, for example, operational excellence or sales performance, or perhaps even the status and the influence in the organization itself [00:32:50] from what may be an hour from an allegation.

And I'm curious as you are undertaking investigations and working with clients and a number of industries, how do you [00:33:00] approach investigations that include someone that it's that 

Guest 1: [00:33:02] profile? Well, I w I approached them like I do every investigation. Um, it doesn't matter, you know, like everyone says, if you're [00:33:10] the CEO or the janitor, uh, everyone should be treated.

The same should, should be treated consistently in any type of process, I guess, uh, [00:33:20] unfortunately, or fortunately, uh, you know, we're now seeing in the media a few weeks stars who are getting called to task. Uh, so we have, you know, the governor general, we [00:33:30] have her, uh, her BFF. We have, you know, the two sort of high right and high ranking men in the, in the military.

Who are all getting called up [00:33:40] on a call out on, you know, their behavior, uh, either in the past or the present. And, and so now we're seeing some action and, um, you [00:33:50] know, I think it goes back to sort of culture and what employers are willing to do. So for example, I did an investigation a few years ago [00:34:00] who, uh, the CEO of a big organization, um, was having an affair.

Uh, with, you know, one of his [00:34:10] subordinates and she didn't really consider it an affair. Uh, she considered it sexual harassment. So, you know, we did an investigation and, you know, we made a finding that [00:34:20] all of this, all of her allegations had happened. And as a result, um, he resigned. And so do I think that's, you know, was I happy [00:34:30] that that was big organization went that way?

Yeah, I am. And I think. What it is, is that organizations sometimes are afraid. To do the right thing. And I [00:34:40] think we are in a time where you have to do the right thing, right? You don't have a choice anymore because I think the risk and the liability is [00:34:50] too great. And I think it sends a bad message to, you know, your workforce to say, Hey, you know, our rock star is our rock star and we're [00:35:00] going to let them be a rock star, so just deal with it.

Right. Whereas, you know, if an organization is willing to, uh, deal with their rockstar, um, [00:35:10] it sends a good message and it actually improves the culture right. In the sense of, okay, something's going to happen. Um, something's going to be done [00:35:20] if, you know, if someone makes a complaint. So, you know, all of us probably remember the, um, the story of Jian Ghomeshi, you know, who was the big rock star at [00:35:30] CBC and look what happened to him.

Right. So I think that, you know, it's a choice, right? It's a choice for an organization to either. Deal with it. Head-on or [00:35:40] to assume the risks, 

Matt: [00:35:41] it's a choice and it's a choice that's becoming easier to make as you referenced, um, you know, liability aside organizations and their employees expect a [00:35:50] greater degree of transparency.

And it's no longer acceptable that because somebody holds a position of power influence that their conduct can be treated with any less seriousness than anybody in the [00:36:00] organization. As you mentioned. I mean, it wasn't always the way that it was. So I agree with you. I applaud the recent changes and I certainly welcome more of them.

Uh, we need to hold people to the same standard and, [00:36:10] um, because you have a C in front of your title or because you happen to be part of, uh, you know, the family business or because you happen to have long standing records of, of performance in the [00:36:20] organization, shouldn't preclude you from, you know, being held accountable for actions that ultimately undermine the broader organizational culture and mission and performance.

Uh, so I think it's, it's. [00:36:30] It's a challenging topic, but I think it's a topic that we're going to see more and more of as this accountability, kind of, if you will continues to permeate through society on that note, [00:36:40] it's kind of related in a way. And at the same time, there's a bit of a nuance to this and it's the conversation around bias and bias is always a very [00:36:50] difficult topic to raise in any conversation because most of us think we don't have it and we all do.

And whether it's a bias towards an [00:37:00] outcome, a bias towards a process, a bias towards an individual, or what comprises that individual or group of people for that matter bias as an [00:37:10] inherently difficult subject to tackle. And when you're doing an investigation, you have to remove bias completely from the equation in order to arrive at what would be [00:37:20] seen as a, as a, as a fair or a balanced approach or result.

I'm curious from your perspective, as you work with organizations and with your own team, how do you work [00:37:30] to remove or mitigate the likelihood of bias occurring in an investigative 

Guest 1: [00:37:34] process? Yeah, but a bias can be a challenge, especially more so of a [00:37:40] challenge for, uh, the internal investigators, because they may work with these parties.

Right. And so how do you, how do you say that you're not that there [00:37:50] isn't a bias against one party over the other. And so, you know, that that's where, uh, internal, uh, the internal folks who would do the investigations, you [00:38:00] know, need to check, need to check their biases. Right. And like you said, Matt, We all have them and it's okay, but we need to check them.

Right. We need to make sure that [00:38:10] they're not going to complicate what we are supposed to be doing. So for external investigators, um, it's a little, it'll, it's a little less of a concern. [00:38:20] Um, in the sense of, you know, we're sort of, uh, we're external, so we're, we don't work in the organization and we don't know these parties.

We don't, you know, we don't [00:38:30] usually know a lot about the organization. And we certainly don't know the party. So any kind of bias, you know, uh, usually is not there. You know, [00:38:40] sometimes we run into situations where, you know, we might get one of the parties that has the same last name as one of the people who, you know, works at oops.

Right. And, uh, [00:38:50] we go as far to make sure you know, that there, there is no relation. Right. But there's. Even no family tree relation. Um, because we, we try and sort of [00:39:00] eliminate any, any perception of bias that, that we can, even, if we, you know, say, get a case where, um, you know, we might have, uh, you know, like a repeat [00:39:10] customer, With one of our clients are repeat contract with one of our clients.

And you know, one of the, one of the old witnesses is now, you know, the complainant, the [00:39:20] respondent, you know, are we going to do that investigation? Well, we're not going to do it unless they consent to it. Right. So we make sure that we. Double triple check, all the things that could be [00:39:30] perceived as a bias towards us as the external investigator.

And so, um, you know, and even, you know, the thing is we, we have to check ourselves [00:39:40] so years ago I was asked to do a case where, um, you know, a man had been convicted of, uh, Assaulting a minor. And, [00:39:50] um, I used to be a social worker in my previous life. And so I knew that that probably wasn't going to work for me.

And so I sort of recuse myself. So I think it's [00:40:00] okay to say, you know, that you're not comfortable with. You know that you're doing it. And so just always being aware of bias and there's lots of biases that we have to be [00:40:10] concerned of. Like one of the biases that we have to be concerned about is called confirmation bias.

And so when we talk to the client initially, you know, they usually want to [00:40:20] tell us. The whole story and what their opinion is, and you know how this went down and who, who they think is guilty. And I usually cut them off at the bus. And I just [00:40:30] say, you know, I just, I just need to know what the complaint is.

I just need to know sort of, uh, you know, maybe the org structure. Um, you know, because I never, I never [00:40:40] want to be, you know, say on the stand being grilled by some lawyer saying, well, you know, isn't it true that, uh, you know, the HR person [00:40:50] told you all this stuff at the beginning and that really, you know, set in your head.

So you, you know, you had a bias against whoever and in, in the, uh, [00:41:00] investigation, So you have to be careful about that. Um, and, and also, you know, with internal folks, I mean, confirmation bias, [00:41:10] I mean, that's going to be a challenge, right? Uh, for a lot of people in, um, in the internal, in the internal roles.

Matt: [00:41:17] Yeah. It's, it's a challenging topic [00:41:20] and, you know, we have to look at it differently. One thing that I think has kind of, if you will bend the backdrop of this entire conversation [00:41:30] is. The nets and sensity to ensure humanity in the investigative process. We've talked about this a few different ways. We talked a bit about how [00:41:40] it's not like what you see on TV.

We've talked about how. It's not the same as a criminal investigation. We've talked a little bit about removing bias and how you address those, if you [00:41:50] will, high performers and organizations. Um, and one thing that you were very clear about early in our conversation was the need to approach these things with a trauma informed approach and all [00:42:00] these things.

To me, speak to this necessity, to create, uh, you know, And human humanity, um, respect, you know, that, that, that positive intention in [00:42:10] the investigative process, uh, I'm curious what your thoughts are about the idea of ensuring humanity in the investigative process. Um, And then [00:42:20] how you work with your clients to ensure that takes place.

Guest 1: [00:42:23] I think that's super important, Matt, so, um, and you know, sometimes some, and it shouldn't be a [00:42:30] challenge for anyone for that to happen because our, our role is to really, to find out what happened. Right. And if it's something that is [00:42:40] contrary to what your organization's policy says, then we need to deal with it.

Right. But even when we deal with it, we should be dealing with it, uh, you know, with [00:42:50] humanity in mind. And so I think it starts, you know, it starts with that first meeting with the person who comes forward, you know, with a complaint, a concern or an issue, whatever, [00:43:00] um, in, in the way that they're being dealt with.

Are they being treated. Uh, respectfully, are they being given the time to express [00:43:10] themselves fully? Um, do they have an understanding of what their rights and options are internally with, with the organization? Um, and what that [00:43:20] might look like? One of the challenges is that we see is that, um, a lot of the times.

These folks don't really understand the [00:43:30] process and they get thrown into it. And I think that's when things, you know, go off the rails in the sense of, you know, treating, uh, you know, treating everybody like [00:43:40] humanly, right? Like endorsing humankind in the sense, you know, be like people will come into our interviews and they'll say, I don't even understand why I'm [00:43:50] here.

You know, this, this is not what I wanted. I just wanted this. Right. And so I think that's a cue is that listening and [00:44:00] actually hearing people needs to happen at the front end steps. Right. In the sense of like, w what is it that is going to make this right for this [00:44:10] person? You know, like we see so many times where, you know, the organizations are jumps ahead.

Right. And kind of jumps over the complainant, right. To, to [00:44:20] facilitate, uh, an investigation and don't consider how has this, you know, how can we resolve this? Right. And sort of, it goes back to that triage, right? [00:44:30] In the sense of, are we listening? Are we hearing what these folks are really telling us? You know, or are we sort of checking off the box so that we don't get sued?

[00:44:40] So I think it goes back to, you know, what are w you know, what are the needs, what are the wants, what are the expectations of the party [00:44:50] that comes forward? And also the respondent, you know, it's really important to remember that we don't know what happened until we do an investigation. [00:45:00] It's interesting because some of the, some of my clients, as soon as an investigation complaint is, uh, or a complaint comes forward in an investigation is started.

[00:45:10] Um, they will send the respondent home, pending the outcome of the investigation. And I always say to them like don't ever do it, you do that unless there is a [00:45:20] good reason to do so, because guess what, guess what the message is to the respondent? Well, obviously I'm guilty. Right? They're suspending me. So, so, you [00:45:30] know, so there's lots of little nuances along the way that, you know, organizations have to be aware of.

And, you know, to sort of bring that humankind, [00:45:40] you know, back into the process. 

Matt: [00:45:42] That's a really great way to end. What's been an awesome conversation, Cheryl, uh, as I mentioned, starting off this chat, uh, investigations is a [00:45:50] difficult topic to get into. But it's just so essential to ensure that we maintain good organizational culture, that we do things the right way and get everybody [00:46:00] due process and equal opportunity to share their stories.

But ultimately that we treat people with a degree of humanity and respect that I think all of us are entitled to. So I [00:46:10] want to thank you for your time today. Um, I'm going to link all of your details in the show notes of this episode, for those that are interested in reaching out to you. Outside of this conversation and just want to wish you a good rest of your [00:46:20] week.

And hopefully we can talk again 

Guest 1: [00:46:21] soon. Thanks Matt. It was great

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