Accused of misconduct?

I get calls about harassment or misconduct. Most of them are from people who have been told they have to meet with HR and are frightened. If you work at a company like that, where HR calls you to a cryptic meeting about a complaint, you have my sympathies.

I usually try not to advise those people since they rarely tell me everything. However, if you get a call or an email, you should review the policies and procedures around the company process. You should politely decline to speak to anyone until you are provided with clear and detailed allegations, to which you can respond. Otherwise, you are in a stressful situation trying to justify your actions in relation to vague statements. That is unfair and a clear violation of your right to procedural fairness and an unbiased investigation.

There are situations where people are invited to respond informally before an investigation is declared. I have been in those situations myself. Such informal meetings should have a good dose of you asking what this is about. How can anyone address non-specific concerns successfully? The short answer is that you cannot, nor should you try.

The truth is that if you are a manager or supervisor, almost inevitably, you will, at some point, be accused of some unsavory activities. Whether those accusations are accurate is not for you to judge.

People have a right to complain

Everyone has a right to complain. That is a hard fact. People complain about many things. When facts are in short supply, they often switch to more personal matters.

To be honest, we are not the people we hope to be every day, and that may result in behaviors or even comments that we regret later.

When it comes to harassment, things are all in the eye of the beholder. It is important to acknowledge that people have every right to voice their displeasure within reason. That right is not unlimited. What matters is the process.

The process is usually focused on the person who complained. I find that the rights of those accused are often steamrolled by underinformed people. As much as lives can be destroyed by harassment, it is equally true on both sides of the equation. Poor processes and investigations can lead to people never working again and promising careers being destroyed.

You have been accused

It is difficult to hear that someone has accused you of uncivil conduct in the workplace. It happened to me, and my response (like most people) was that I was mortified. Any real leader would be. It takes time to process that, and it is important to take that time.

We have all heard of the summons to HR where you are confronted with some sort of complaint, and responses are demanded. That is commonly called Ambushing. Those who engage in it are clearly biased and demonstrate a clear case of confirmation bias—hunting for what they believe to be true. It is also a violation of your rights.

It is difficult in the moment to realize and understand that ambushing is unethical and inappropriate. Calling it out and ending the meeting takes a good measure of emotional intelligence and gumption. You are not obligated to answer these questions.

Your rights

I already spoke about the process, and that must be based on a legal concept called procedural fairness.

If the employer receives a complaint, they must determine a few things.

1. Are there specific incidents described, including where, when and who was involved?
2. If these events were true, would they violate a company policy or a law?

These gateway questions help indicate whether an investigation is necessary. Many complaints contain vague language and talk about impressions rather than specifics.

If there is an investigation, then there are rules.

That starts with the investigator. They must not have a conflict of interest, perceived or otherwise. There must be no reasonable apprehension of bias. This is particularly important when giving due regard to the importance of the decisions made to the individuals affected. So, internal investigators should likely not be used where there will be serious ramifications from the investigation findings.

Then there is the process. If you are being investigated, you must:

1. Be informed that there has been a complaint and that it will be investigated. Organizations should have a process for this just as they have a process for determining if there is to be an investigation.
2. Be informed who made the complaint. The courts have spoken loudly on this point. There can be no clandestine complaints.
3. Be informed of the specific allegations against you (in writing). This is usually after the person complaining has been interviewed. Allegations must be specific, outlining what exactly the complaint is about and what you are specifically alleged to have done. There may be cases where allegations are non-specific, and this should be pointed out to the investigator. It is the formal allegations that are investigated and form the scope of the investigation.
4. Be interviewed sometime after the allegations have been provided to ensure you are able to consider them and make a fulsome response. This is why ambushing is such a problem. Most people are surprised about a complaint and need time to think rather than being pressured into an admission that could be misconstrued.
5. Be interviewed again to respond to any new or conflicting information provided by the person complaining or any witnesses. The investigator normally interviews the person who complained and the person on whom the complaint is focused before interviewing the witnesses who are identified. It is normal practice to come back to you so you can address any inconsistencies in information provided by witnesses and the person complaining about what you had to say.
6. Be given the findings of the investigation. Findings would include the allegations and the rationale for the decision in regard to each allegation. Rationale means the reasoning used to come to the conclusion would have to be explained. The investigator is required to explain any findings, including outlining the evidence that was relied upon. In some cases, investigators may make no finding as the evidence is inconclusive.

One of the principles of administrative law is the duty to hear both sides. A key part of the process is being given an opportunity to respond to any allegations and any other information provided regarding the allegations. That is fundamental to administrative investigations.

These investigations make findings on the balance of probabilities, not beyond a reasonable doubt, as in criminal proceedings. The balance of probabilities means that one version is more likely to be true than another. However, this must be based on evidence and analysis that is articulated in the rationale.

The process

People complain or vent about all kinds of things for all kinds of reasons. In many cases they complain about what they can, and not necessarily what is making them unhappy. However, most people do not complain for no reason.

Procedural fairness is a well understood legal concept that the Supreme Court of Canada has clearly outlined.

It is entirely up to the employer if a concern or complaint is to be investigated. However, the investigation must be procedurally fair and free from the reasonable apprehension of bias. The investigation must be done competently and, in some cases, would require a licensed investigator.

The findings

It is true that in most cases involving a harassment complaint, some of the allegations are found to be valid.

There are no degrees of harassment. However, the nature of the cases does vary widely. The employer has the discretion when it comes to actions to be taken. That ranges from an apology to a formal warning. It also extends to counseling, training, or even termination.

Investigators are not involved in the corrective action portion of the process. However, like any disciplinary action, the measures must be reasonable.

Conclusion

If you are a manager or supervisor and someone complains about you, that probably means you are doing your job. Seriously. You have to make decisions that may be unpopular or support company policies that are seen as unfair.

Remember that people are entitled to their opinions and entitled to complain. On the flip side, you are entitled to a process that is procedurally fair and unbiased. An administrative investigation must be all those things. The investigator must be unbiased and competent, laying out clear allegations and giving you the opportunity to respond to any information gathered by the investigation. Any findings must be supported by the rationale explaining how the finding was reached and which evidence was relied upon.

Investigation results must be shared. That may be a redacted report of just the section on findings so that you may understand the findings and rationale.

So, when you get the call or email, take a deep breath. Recognize that those complaining have rights, and so do you.