CANADA Trends and Developments Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
are able to participate meaningfully in the investigation process. Employers are also recognising that inclusiv - ity is not only a fundamental component of ensuring fairness and impartiality in investigations but that it also has the effect of fostering a broader culture of inclusion in the workplace, with workers feeling com - fortable speaking up about issues and confident that harassment, discrimination and violence will not be tolerated. Considerations of Inclusivity in Procedural Fairness Inclusive practices in investigations are not neces - sarily about obtaining a different result or outcome. Rather, inclusive practices reinforce and maintain procedural fairness in investigations. Considering issues of inclusivity in investigations and ensuring that proper safeguards are in place is an integral part of the investigative process. It supports the collection of the best available evidence, ensures that investigators are attuned to factors that may shape how evidence is given and received, and, in turn, promotes sound and defensible outcomes. A central component of this approach is creating a process in which participants have confidence in the investigation and feel able to speak candidly with the investigator. At the outset, employers can reinforce this by implementing policies and procedures to ensure that employees feel comfortable raising com - plaints in the first place. This can be done by providing different options for reporting, such as anonymous reporting tools and multi-level reporting mechanisms. At the interview stage, inclusivity requires that inves - tigators remain alert to cultural differences, uncon - scious biases, communication styles, and existing power dynamics. In practice, this often demands a level of deliberate self-reflection, including considera - tion of how their and participants’ experiences and perspectives may influence interactions, assessments of credibility, and decision-making throughout the investigation. The Duty to Accommodate and Types of Accommodations As we know, employers have a legal duty to accom - modate individuals based on protected grounds under
applicable human rights legislation up to the point of “undue hardship”. The goal behind the duty to accom - modate is to provide equal opportunities, reduce bar - riers to participation, and foster inclusivity and diver - sity in the workplace. Organisations and workplaces must also proactively consider how to accommodate participants during the investigation process. In recent years, more employers are designing investi - gation practices with accommodation and accessibil - ity considerations at the forefront to ensure procedural fairness, remove barriers, and facilitate the participa - tion of individuals. Some examples of accommoda - tions in a workplace investigation include, but are not limited to: • ensuring that individuals are medically fit to partici - pate in the investigation; • offering increased break times during interviews or adjusting the length of interviews; • providing opportunities to participate or respond to allegations in writing rather than verbally; • recording and providing recordings of interviews to participants; • adjusting interview timing and locations to accom - modate individual needs; • permitting the presence of a support person or representative during interviews, where appropriate and permissible; and • ensuring translation or interpretation services are available if required. It is important to note, however, that the duty to accommodate does not extend to providing every accommodation request made by a participant. Human rights jurisprudence has clearly established that the aim is to accommodate a person’s needs, not their preferences. In workplace investigations, employers and investigators will need to balance accommodation requests against the need to conduct fair, impartial, and timely investigations. Accordingly, accommodation requests in investigations need to be considered and assessed on an individualised basis to determine what is appropriate and justified in the circumstances.
73 CHAMBERS.COM
Powered by FlippingBook