Most companies have 'woefully inadequate' policies and procedures that fall well short of legislated requirements – and worker rights
October is National Bullying Awareness Prevention month - a topic strongly linked to psychological safety.
Previously, I wrote about why we investigate incidents. I have long said that workplace violence (bullying), and harassment are in a separate class. When and why we investigate these things is fundamentally different.
Statistics tell us that if you work in a larger organization, there is a good chance that someone is being bullied and harassed now. Unlike other incidents, such as injuries or environmental spills, the unfortunate truth is that bullying in the workplace is a certainty rather than a risk. It is happening and continues to happen.
These days, it is easy to look in the news and see stories of payoffs and Non Disclosure Agreements (NDAs) over improper behaviour. There are stories of executives harassing, bullying, and even assaulting employees who are later promoted. We look at these stories, hoping this is not happening in our workplaces.
Read more: When to investigate - or not
I often ask the same questions – where is the union? Why are they not taking on their role to help employees and ensure the employer at least follows the minimum requirements of the legislation?
The start of an investigation into something like bullying is fundamentally different. When do we investigate? Such a simple question, in these cases, becomes complicated. We normally would investigate if there was an event that could have, or did, result in a loss. Not so when it comes to bullying.
There are two ways in which an investigation is usually triggered. A complaint is filed, or a manager or supervisor witnesses something they believe violates the company's policy.
The first question here is not about what happened, or the outcome. It is a seemingly simple one. Is the complaint or person who may be experiencing bullying safe?
The problem is that bullying does not happen in specific windows. When this comes to management's attention, it is happening – right now. The person can be experiencing cumulative psychological trauma right now. Just because a complaint or concern was raised does not mean the suffering has magically ended. A psychological injury is in progress, and the person often needs a safe environment. How can the company ensure that?
Providing modified work as we do with a physical injury coupled with psychological first aid is essential. This does not necessarily mean that an investigation is assured.
Some specific questions need to be asked and answered to obtain some specifics. That means the company should be assisting employees in articulating the complaint. This means providing resources or personnel to assist with that.
Read more: Safety and the ‘lollipop moment’
The important questions in a traditional investigation often ask about what people saw or what events led up to the incident. In these cases, there are some simple questions to answer.
The first? Does what is described violate any company policies or requirements? Companies must have policies and procedures or prevention plans around bullying. Before an investigation can really begin, we need a complaint or statement describing the undesirable or offensive behaviour(s) and to determine if this violates company policies.
The second question is usually the important backstop. Does what is described violate any legislation? This is a broader question, and an important one. Most companies have woefully inadequate policies and procedures on bullying that fall well short of legislated requirements – and worker rights.
If the answer to either of the questions is yes, then an investigation is required.
Investigations are done for various reasons. No one wants to believe they work in a place where bullying or harassment are tolerated. People reporting these behaviours or incidents expect an investigation. It is important to understand they expect a competent investigation.
I say competent because I see a lot of evidence that people who are not competent are doing these investigations. A poor investigation can make a nightmarish scenario even worse. When it comes to using an external investigator, it is no better. It is an unregulated free for all, and the only remedy a complainant has after such an investigation is often to sue the external investigator.
Employers must ensure that people who investigate are competent, and that (as all safety people know), means more than training. Building experience is tough. Team investigations pairing an experienced investigator with an inexperienced one is a good solution.
Bullying and harassment are life-changing experiences and leave people with lifelong injuries and disabilities. A competent investigation is the least that employers should be providing and that unions should accept.
The questions often come up, and rightly so, when we would not investigate. Some would say a confession from the respondent or perpetrator would mean no investigation is necessary. I disagree. A confession can be an attempt to hide the scope of the problem. Failing to investigate means unresolved or unproven allegations – and what if another complaint shows up? If there was no investigation last time, two people are deprived of their sliver of justice.
Is there a situation where an investigation would not be appropriate? Of course. For example, where the investigator has evidence of criminal sexual assault, then it would be time to call in the police. A tougher question is where a complainant leaves and cannot continue with the investigation.
In other cases, there are situations where an investigation may not be warranted. Assuming the statements or complaint paint a picture of illegal behaviour or a violation of company policy, when would you not investigate?
In some situations, the perpetrator may have left the company before the problems came to light, and an investigation would needlessly traumatize people further. However, counseling would be appropriate there.
Like other investigations, some initial fact-finding must be done to determine how to proceed. Investigation is often a legislated responsibility. One would hope the investigation was a competent one.
Bullying and harassment are the number one issue that safety regulators get called about. It costs billions each year. As with all such things, preparation for the inevitable complaint must be complete. Responding appropriately can mitigate harm. A complaint will come.
Are you ready?