Accessibility

Main Menu
Main Menu
Menu
REGISTER NOW

Accessibility

Dual Track Performance Leadership

by Leave a Comment

Introduction: A Leadership Methodology Developed Through Real Practice

Across years of coaching leaders through complex performance situations, I have noticed a recurring pattern: many leaders avoid addressing performance issues in the hope that things will simply improve on their own. When that same employee later raises medical needs or requests an accommodation, the hesitation intensifies. Leaders freeze. They soften the message, delay the conversation, or avoid it entirely. Sometimes to the point of considering termination under the guise of restructuring. Not because of lack of competence, but because they fear getting something wrong.

To help leaders navigate this challenge, I have developed a leadership methodology that I call “Dual Track Performance Leadership”. It’s a practical, leader-friendly approach that teaches leaders how to manage performance expectations and support employee needs at the same time. This concept is distinct from the “dual track” term used in career progression; here the two tracks refer to Performance Clarity and Support Exploration.

Dual Track Performance Leadership is not a disability framework. It is a leadership capability: the ability to hold compassion and accountability simultaneously.

Why Leaders Freeze

When performance issues intersect with medical needs or accommodation requests, leaders often experience a freeze response. Common concerns include:

  • What if I say the wrong thing?
  • Will this seem discriminatory?
  • What if I make the situation worse?

The hesitation is understandable, but it has consequences:

  • Avoidance Harms the Employee: Without clear expectations, employees cannot succeed. They may believe their performance has been acceptable until the gap becomes unmanageable.
  • Avoidance Harms the Team: Colleagues absorb the workload, resent the inconsistency, and lose trust in leadership.
  • Avoidance Harms the Leader: Credibility erodes and leaders become known as people who avoid difficult conversations.
  • Avoidance Harms the Organization: Risk increases. Documentation weakens. Options narrow.

Avoidance is not compassion. Clarity is.

Why This Matters Now

Today’s leaders are navigating:

  • Increased medical accommodation requests
  • Rising mental health needs
  • Hybrid work complexities
  • Heightened expectation for empathy and inclusion
  • More complex employee situations than ever before

Leaders want to be human-centered, but many have never been taught how to hold compassion and accountability at the same time. Dual Track Performance Leadership gives them a practical way to do it.

The Myth: “If there is a medical issue, I can’t manage performance.”

This misconception is widespread and incorrect. Medical needs do not eliminate performance expectations. Accommodation is about removing barriers, not removing standards. Leaders can and must do both.

Research consistently shows that:

  • Accommodation improves employee outcomes
  • Early intervention improves return to work success
  • Supportive leadership improves well-being
  • Clear expectations reduce risk

Although research provides guidance on performance management and workplace accommodation, these areas are almost always treated as separate domains. In practice, leaders and HR professionals routinely have to navigate them concurrently. There is currently no published leadership model that integrates both into a single, practical framework for leaders. Dual Track Performance Leadership fills this gap by giving leaders a clear, actionable way to hold compassion and accountability simultaneously.

Dual Track Performance Leadership

This is a simple, practical framework that helps leaders act early, fairly, and confidently when performance issues and support needs intersect. It removes false choice between compassion and accountability.

The model has two parallel tracts: Performance Clarity and Support & Accommodation Exploration.

Track 1: Performance Clarity

This track focuses on the work itself: expectations, impact, and the required change.

Leaders must clearly articulate:

  • Essential duties
  • The performance gap
  • The impact
  • What needs to change
  • Timelines
  • How progress will be monitored

This track is about expectations, consistency, and accountability.

Track 2: Support & Accommodation Exploration

This track focuses on barriers and support, not diagnosis or medical details.

With the support of HR, their organizations, and disability management specialists/providers, leaders explore:

  • Functional limitations
  • Tasks impacted
  • Reasonable adjustments
  • What can be modified about how work is done
  • What cannot be modified because it is essential

This track is about compassion, flexibility, and problem solving.

The Power of Running Both Tracks Together

Most leaders mistakenly believe they must choose:

  • Do I address the performance?
  • Or, do I focus on support needs?

Dual Track Performance Leadership teaches leaders how to do both at the same time.

When leaders run both tracks together:

  • Employees feel supported, not singled out
  • Expectations remain clear
  • Accommodations are purposeful
  • Performance conversations feel fair
  • Risk decreases
  • Documentation improves
  • Trust increases

This is modern leadership.

Case Examples from Real HR Practice

Case 1: When Support Unlocks Performance

A leader notices declining performance and opens the conversation early. The employee shares they are experiencing medication‑related fatigue. With modified deadlines and a quiet workspace, performance rebounds, the employee feels supported and accountable.

Case 2: When Performance Does Not Improve

A leader provides clear expectations and reasonable accommodations. Despite this, the performance gap remains. Since the leader acted early and documented consistently, the organization can move forward fairly and transparently.

Case 3: Early Intervention Prevents Escalation

A leader notices small inconsistencies and checks in early. The employee shares that they’re struggling with temporary medical side effects. A short‑term accommodation is put in place, and the issue resolves before it becomes a pattern.

These examples illustrate a core truth: Support does not replace performance expectations; it enables them.

What Leaders Get Wrong

Across years of HR practice, several patterns consistently emerge:

  • Waiting too long to act
  • Assuming medical issues are equivalent to “hands off”
  • Over-accommodating without structure
  • Failure to document
  • Not looping in HR early
  • Confusing empathy with avoidance

Avoidance is not kindness. Clarity is.

Leader Scripts: Practical Language for Difficult Moments

Leaders often freeze because they do not know what to say. The following examples could help:

Opening the Conversation

“I want to check in because I’ve noticed a few changes in your work, and I want to understand what’s changed so I can support you and ensure expectations are clear.”

Asking About Barriers, Not Diagnosis

“Are there any barriers affecting your ability to meet expectations that we should be aware of?”

Or

“Do you think you would benefit from any workplace accommodations?”

Setting Expectations

“These responsibilities remain essential to your role. Let’s discuss what support you may need to meet them.”

Following Up

“Here’s what we agreed to, here’s what support is in place, and here’s what we’ll review at our next check‑in.”

Then follow up the conversation with a summary email so you and the employee have a record of what was discussed.

Why Dual Track Performance Leadership is a Leadership Model, not an HR Process

Dual Track Performance Leadership is fundamentally a leadership capability. It requires:

  • Courage
  • Emotional Intelligence
  • Clarity
  • Consistency
  • The ability to hold two priorities at once
  • The discipline to act early
  • The skill to communicate with compassion

These are core leadership behaviours taught across modern leadership development programs, including those offered by Queen’s University IRC. This model does not replace HR processes, but instead, strengthens leadership behaviour within them.

Conclusion: Courageous Leadership is Both Compassionate and Clear

Leaders today must be able to hold compassion and accountability at the same time. Dual Track Performance Leadership gives them a practical way to achieve this. You can be supportive and still set boundaries. You can accommodate and still expect performance. You can care deeply and still lead firmly.

Performance and support needs are not opposites: they are two rails of the same track. When leaders run both rails in parallel, aligned, steady, and consistent, the organization moves forward safely and smoothly.

This is responsible, human-centred leadership.

About the Author

Tina Sarkar-Thompson, CHRL, MEd, MBA, is a human resources professional with over 25 years of experience that includes providing strategic HR guidance to senior leaders and employees in all facets of HR, including employee and labour relations, talent development, organizational planning, learning and development, total rewards, health and safety, operations as well as policy and program development.

She is currently the Assistant Vice President, Human Resources at ROM (Royal Ontario Museum) and a part time course developer, designer and lecturer for Toronto Metropolitan University’s new HR Management & Leadership Program. Tina’s HR background includes roles at Trinity College in the University of Toronto, the Canadian National Institute for the Blind (CNIB), Toronto Metropolitan University and The Anglican Church of Canada. Tina has been sought out as a speaker and consultant in the areas of change management, team building and disability employment issues.

Tina holds a BSc in Psychology and an MEd in Leadership, Higher & Adult Education, specializing in Workplace Learning & Social Change from the University of Toronto. In 2022, she graduated with an Executive MBA with an HR concentration from the Jack Welch Management Institute at Strayer University. She is a Certified Human Resources Leader (CHRL) from the Human Resources Professional Association. Tina is passionate about people, employment and inclusion.

Outside of work, Tina is a second-degree black belt in Taekwondo, an assistant martial arts instructor, and is training for her third-degree black belt. She has held various leadership positions on volunteer boards that serve the community.

 

Download PDF: Dual Track Performance Leadership

Understanding AI in Modern Workplace Investigations

by Leave a Comment

Workplace investigators currently stand at a technological crossroads. As Artificial Intelligence (AI) integrates into our workflows, the tools available to gather, transcribe, and analyze evidence have evolved at a pace that exceeds the legal and ethical frameworks designed to govern them, introducing risks to the investigative process.

While AI offers the tempting promise of automated transcription and pattern recognition, it can also misrepresent facts and generate entirely fabricated information. As an investigator, I recognize this technological shift is inevitable, but the question remains: does AI truly enhance our capacity, or does it simply introduce a new layer of administrative burden and legal vulnerability?

Efficiency vs. The Obligation of Accuracy

The temptation to use AI to save time can lure an overworked investigator into a dangerous illusion. While the algorithm can transcribe an investigative interview, the investigator remains ethically and professionally obligated to verify every word. In my view, spending hours double-checking text to ensure a witness was not misquoted does not improve efficiency; it simply doubles your workload.

Furthermore, while a machine can transcribe words, it cannot detect sarcasm, manage a difficult witness, or pivot its strategy in real-time. AI is a superb tool for data management, but does it have the cognitive depth required to ensure an investigation is fair and thorough?

The Risk of Fabricated Information

The greatest risk is the tendency for AI to present distorted or made-up information as fact. Most modern AI tools are powered by Large Language Models (LLMs), which are complex algorithms trained on vast amounts of text to predict the most likely next word in a sequence.

It is vital to understand that an LLM does not know facts; it simply understands the mathematical probability of how words should fit together. Additionally, LLMs prioritize sounding helpful and fluent over being accurate. That is, LLMs are entirely capable of hallucinating[1] events, dates, or even legal authorities that do not exist. For investigators, relying on AI is a profound professional liability.

We have already seen this play out in the Canadian legal system in Zhang v. Chen[2]. In 2024, a lawyer used AI for legal research and submitted two non-existent case citations to the court. The AI had completely fabricated these precedents, leading to significant delays and a court order requiring the lawyer to personally pay the opposing party’s legal costs.

In this case, there is direct applicability for workplace investigators. Much like a lawyer, an investigator’s primary value lies in their ability to provide a report that is grounded in evidence. If your report relies on AI-generated logic, you may be adopting fabricated information as your own professional finding. Justice Masuhara highlighted this exact danger in Zhang, noting:

“As this case has unfortunately made clear, generative AI is still no substitute for the professional expertise that the justice system requires… The integrity of the justice system requires no less.”

It cannot be overstated that the integrity of an investigation, and the careers of those involved, cannot be left to a tool that prioritizes fluid sentences over factual accuracy.

The Witness Box Test: Can AI Defend Itself?

Whether an investigator uses AI to passively gather data or actively processes interview notes through the algorithm for expedience’s sake, the evidentiary burden stays the same: the investigator must verify everything.

If your final report relies on AI sorting or automated summaries, it must be able to withstand cross-examination by a third-party examiner or opposing counsel.

In the final analysis, an algorithm cannot sit in a boardroom or step into a witness box to defend its methodology. It cannot explain the nuances of why it flagged one specific phrase as deceptive or why it determined one individual more credible than another. Considering that AI cannot articulate its own reasoning, it cannot defend its own integrity. If you leave your critical thinking to a machine, you leave your entire case open to challenge.

The Rising Value of the Human Investigator

It is my view that the deeper AI integrates into investigative processes, the more valuable human intuition becomes. While technology excels at combing through data, it cannot conduct a trauma-informed interview, read emotional nuances, or balance complex workplace dynamics. That is to say that transforming raw evidence into a just and fair outcome remains a uniquely human skill set.

Ultimately, protecting workplace integrity requires human wisdom, not automated shortcuts.

About the Author

Devan Corrigan

Devan Corrigan is an expert in workplace investigations and labour relations, bringing over two decades of human resources management to his practice. Since founding his independent consulting firm in 2017, Devan has specialized in conducting objective third-party workplace investigations into high-stakes issues, including allegations of harassment, sexual harassment, workplace violence, and complex employee misconduct. Throughout his career, he has been retained to investigate sensitive, high-profile matters carrying significant national implications.

Devan holds a Master of Industrial Relations from Queen’s University, alongside an Honours Degree in Psychology and a certificate in Human Resources Management from Saint Mary’s University. This unique intersection of advanced labour relations expertise and behavioral psychology positions him as a trusted, highly sought-after neutral investigator.

Devan is the lead facilitator for Queen’s IRC’s Fact-Finding and Investigations and Advanced Workplace Investigation Skills programs.

[1] AI hallucinating refers to when an AI system produces information that is false, fabricated, or unsupported by its training data or the given input yet presented as if it were correct or factual.

[2] Zhang v. Chen, 2024 BCSC 285.

Download PDF: Understanding AI in Modern Workplace Investigations

Utilizing Age Demographics to Strengthen Collective Bargaining Outcomes

by Leave a Comment

Prior to entering any collective agreement negotiation, one of the most overlooked yet strategic steps is developing a clear understanding of an organization’s workforce demographics. Demographic insight is more than a snapshot of who employees are; it provides a roadmap for anticipating priorities, tailoring proposals, and building agreements that reflect both employee and organizational needs now and in the future. By evaluating workforce demographics, negotiators can gain a clearer understanding of potential interests and adopt a more strategic and informed approach (Abacus Data, n.d.; Pew Research Center, 2019).

Much of this internal demographic information can be collected efficiently through a Human Resources Information System (HRIS), making it readily accessible for human resources and labour relations teams preparing for bargaining.

This article explores age demographics and their importance in developing effective bargaining strategies for both now and in the future. When preparing for negotiations, I routinely analyze a range of demographic indicators, including, but not limited to, age, gender, tenure, current and historical salary data, benefit participation and coverage levels, organizational survey results, attendance patterns, sick leave usage, vacation usage, and other pertinent data to provide insight into the workforce.

Age is one of the most influential factors shaping how employees work, what they value, and what they expect from their employer. Although individual preferences vary, generational groups often demonstrate consistent patterns related to:

  • Work expectations
  • Preferred rewards and benefits
  • Communication styles
  • Career drivers
  • Short-term versus long-term financial priorities

Understanding these patterns allows bargaining teams to craft proposals that resonate with many employees, anticipate areas of resistance, and prepare thoughtful, evidence-based responses at the negotiation table. For example, if workforce demographics indicate that most employees are under 30, pension enhancements may be less appealing than wage increases, as immediate earnings are often a stronger motivator for younger employees (Abacus Data, n.d.).

Different age groups tend to emphasize distinct financial and career needs, including:

  • Younger employees may prioritize immediate earnings, flexibility, and development opportunities
  • Mid-career employees often focus on career progression, stability, and family-related benefits
  • Late-career employees typically place greater value on pensions, retirement planning, and long-term security
    (Pew Research Center, 2019; Workday, n.d.)

While data and generational research can reveal important trends, it is essential to remain mindful of inherent biases and be nimble enough to adjust bargaining practices to address your organization’s unique .  Recognizing these differing priorities enables both management and union representatives to shape proposals that balance competing interests while supporting overall workforce engagement (Abacus Data, n.d.).

The following overview summarizes typical workplace priorities associated with current and emerging generations, drawing on widely cited generational research and workplace trend analysis. While not every individual fits neatly into a generational category, these trends provide a useful framework for negotiation preparation (Workday, n.d.).

Generation X (born approximately 1965–1980)

Common priorities include:

  • Stability and job security
  • Fair compensation for experience
  • Work–life balance
  • Independence and autonomy
  • Benefits that support family needs
  • Strong pension and retirement planning
    (Pew Research Center, 2019)

Generation Y / Millennials (born approximately 1981–1996)

Common priorities include:

  • Career growth and continuous learning opportunities
  • Workplace flexibility (including hybrid or remote options where possible)
  • Meaningful work aligned with organizational purpose
  • Competitive compensation
  • Wellness programs and mental health supports
  • Transparent leadership and communication
    (Deloitte, 2024; Workday, n.d.)

Generation Z (born approximately 1997–2012)

Common priorities include:

  • Immediate earnings and financial security
  • Skill development and career mobility
  • Technological integration and efficiency
  • Strong commitments to equity, diversity, and inclusion
  • Regular feedback and coaching
  • Workplaces with clear values and social responsibility
    (Deloitte, 2024; McKinlay & Co, 2023; Times Higher Education, n.d.; Workday, n.d.)

Generation Alpha (born 2013 onward)

Currently in their early teens, Generation Alpha is expected to begin entering the workforce within the next decade. Although organizations do not yet have direct workforce data on this group, they have an opportunity to prepare now, from both a recruitment and retention perspective, through collective bargaining. For example, introducing artificial intelligence (AI) tools and developing policies that support ethical and effective AI use can help socialize these technologies and prepare existing employees for a more technologically integrated workplace.

In addition, reviewing other workforce data, such as turnover rates, can help organizations estimate when Generation Alpha is likely to begin entering their specific workplaces and to begin strategic planning for the future.

Early research suggests that Generation Alpha may expect the following workplace characteristics:

  • Highly digital, AI-integrated work environments
  • Personalized learning and development opportunities
  • Structured flexibility
  • A strong emphasis on mental health and well-being
  • Values-driven employment decisions from an early age
    (LinkedIn, n.d.; Work Design Magazine, 2025)

When bargaining strategies are grounded in demographic insight, negotiating teams are better positioned to achieve more sustainable outcomes:

  • Anticipate proposals likely to gain employee support
  • Prioritize issues that reflect the actual composition of the workforce
  • Balance short-term and long-term financial demands
  • Develop communication strategies that resonate across generational groups
  • Build trust by demonstrating understanding and responsiveness
    (Abacus Data, n.d.)

In closing, based on my experience, demographic analysis, particularly age-based analysis, strengthens both the negotiation process and its outcomes. Successful collective bargaining is built on preparation and understanding. Knowing who your employees are is one of the most valuable forms of preparation an organization can invest in. By incorporating age demographics and generational priorities into bargaining strategies, organizations can negotiate agreements that are fair, forward-looking, and reflective of the diverse needs of their workforce.

About the Author

Elizabeth Vosburgh’s passion for strengthening labour relations and human resources practices is informed by her experiences working in both managerial and c-suite roles, as well coaching for Queen’s IRC for the past decade. She has been involved in all aspects of labour relations, from the internal grievance process to arbitration. She has led complicated negotiations, restructuring, professional practice, complex return to work, accommodation, occupational health and safety, as well as workplace restoration. She is a sought-after advisor to senior leadership teams. As a Certified Human Resources Executive (CHRE) with the HRPA, a Registered Nurse with the College of Nurses of Ontario, and a Certified Health Executive, Elizabeth applies both her practical experience along with theory to help individuals and organizations build culturally sound labour relations and human resources programs.

Download PDF: Utilizing Age Demographics to Strengthen Collective Bargaining Outcomes

References

Abacus Data. (n.d.). Precarity mindset and generational divides in union bargaining research in Canada. Retrieved January 31, 2026, from https://abacusdata.ca/precarity-mindset-generational-divides-union-bargaining-research-canada/.

Aligned Negotiation. (n.d.). Generational differences in negotiation. Retrieved January 31, 2026, from https://www.alignednegotiation.com/insights/generational-differences-in-negotiation

Deloitte. (2024). The Deloitte global millennial and Gen Z survey. Retrieved January 31, 2026, from https://www.deloitte.com/content/dam/assets-shared/docs/campaigns/2025/2025-genz-millennial-survey.pdf

LinkedIn. (n.d.). A sneak peek: How Gen Alpha will disrupt the workplace. Retrieved January 31, 2026, from https://www.linkedin.com/business/talent/blog/talent-acquisition/how-gen-alpha-will-disrupt-workplace

McKinsey & Company. (n.d.). “The Great Attrition” series. Retrieved January 31, 2026, from https://www.mckinsey.com/capabilities/people-and-organizational-performance/our-insights/the-organization-blog/the-great-attrition-wanting-the-best-keeping-the-worst

Mercer. (2023). Rise of the relatable organization – Global Talent Trends 2022–2023 Study – Mercer. https://www.mercer.com/content/dam/mercer/attachments/private/global-talent-trends/2023/pdf-2023-global-talent-trends-full-report-english-6013195a.pdf

Pew Research Center. (2019). Defining generations: Where millennials end and Generation Z begins. Retrieved January 31, 2026, from https://www.pewresearch.org/short-reads/2019/01/17/where-millennials-end-and-generation-z-begins/

Times Higher Education. (n.d.). What do Gen Z and Gen Alpha want from their careers? Retrieved January 31, 2026, from https://www.timeshighereducation.com/counsellor/sector-trends/what-do-gen-z-and-gen-alpha-want-their-careers

Work Design Magazine. (2025). The Gen Alpha workplace: Adapting office environments for a new generation. Retrieved January 31, 2026, from  https://www.workdesign.com/2025/02/the-generation-alpha-workplace/

Workday. (n.d.). Engaging the workforce across generations: Meeting the needs of different generations in today’s workplace. Retrieved January 31, 2026, from https://forms.workday.com/content/dam/web/en-us/documents/reports/thought-leadership-research-programs-engaging-the-workforce-across-generations-refresh-report.pdf

 

 

Navigating Your First Collective Agreement

by Leave a Comment

You have just gone through a union certification, and you may now be asking yourself: What’s next? The answer is clear: it is time to begin preparing for negotiations on your first collective agreement (“CBA”).

In our experience, first agreements are extremely important as they set the baseline for future negotiations. However, they can be tricky and generally more complex and time-consuming than subsequent agreements. This is due to the fact that the parties are not building on a previous agreement but rather drafting an entire agreement from the ground up in most cases. In some instances, it may be less complex if there are close comparables from which you can establish the bones of the CBA. In other cases, there may be either no reasonable comparables or totally unreasonable comparables from the viewpoint of one of the parties.

Another overarching issue that arises in the context of first agreements is the lingering feelings of the certification that just occurred. While the reasons for a newly certified bargaining agent can be many, the arrival of a union for the first time in an organization is typically met with some trepidation and anxiety by all affected parties. For the employer, they may feel a looming loss of control and implementation of rules they’ve never had to previously follow. For the union, there can be pressure in demonstrating that their certification was the right choice and that they bring value. For newly unionized staff, some may have high expectations, while others may feel the union wasn’t necessary. And finally, for any staff remaining outside the bargaining unit, there may be fear of a two-tier system being created, among other things. Fear of the unknown tends to be the overall sentiment.

At the same time, the first collective agreement presents opportunities that parties often do not consider, such as establishing clear, consistent processes for a number of issues in the workplace. Examples include procedures for choosing vacation and sick leave or the creation of a more understandable process for overtime opportunities, or who is entitled to various premiums. This can be highly beneficial for building procedural trust and limiting the perception of favouritism and arbitrary decision-making. Furthermore, where the union and the employer have established such procedural trust and have made efforts to establish a good working relationship, they can be of assistance to each other in solving both simple and complex workplace issues, and often in a more timely and cost-effective fashion.

Overall, the first agreement sets the tone for the ongoing relationship between the organization and the union.  As such, both parties need to be diligent and thoughtful in their preparation, and they must also carefully consider the relationship they have had, and want to have, going forward.

Since the first collective agreement sets the baseline for subsequent agreements, the first agreement is arguably more important than the next agreement. As such, preparation is key. Both parties should come ready with good, shareable data if they are to successfully convince the other team that a particular proposal should be agreed upon or not.

Unfortunately, this is not always the case, and the first agreements can, among other things, cover fewer items than they really should, or include language based on comparables that don’t necessarily align with the particular needs of the union, bargaining unit members and the employer involved.

A checklist can help both bargaining teams capture the many issues that may arise. It serves as a tool to anticipate challenges and provides a measure of confidence as you move forward.

Some Key Considerations for Negotiating a First Collective Agreement

  1. Understand Labour Relations Legislation
    Familiarity with the federal, provincial or territorial labour legislation is critical. Consult with legal counsel as needed to ensure no steps are overlooked. For example:

  2. Understand the Freeze Period
    In most jurisdictions in Canada, a “freeze period” limits changes to employees’ terms and conditions of employment while negotiations for a first contract are underway. Be sure you understand how this applies in your specific region.
  3. Establish Bargaining Authority
    Before entering negotiations, ensure the bargaining leader and team have the authority to negotiate. For the employer, this authority typically comes from senior leadership (CEO, VP, or governing body). For the union, it may come from the elected officials, the membership, or a combination. Without it, negotiations may stall, lose credibility, or even risk unfair labour practice complaints. Document and communicate this authority to the bargaining team.
  4. Determine Your Mandate
    Your bargaining mandate (essentially, your bottom line) should be approved at the senior level. It defines how far you can negotiate, when you need additional approval, and when you must stop.
  5. Appoint a Lead Spokesperson and choose your team thoughtfully
    Decide who will act as the lead spokesperson. While some organizations rely on legal counsel, this can become expensive. Smaller organizations may choose a trained internal leader, supported by external advice as needed. Best practice is that the person should have good knowledge of the organization, its operations and how the proposals will impact it. Programs such as Queen’s IRC Labour Relations Foundations and Negotiation Skills can help prepare individuals for this role. In addition, choose, or elect where applicable, bargaining team members with different, complementary strengths including labour relations, finance, operations, etc.
  6. Preparation
    Preparation is the foundation of effective bargaining. The more scenarios you anticipate, the clearer your objectives will be. Consider preparing:

    • Multiple financial scenarios, including wage costs. Determine impact to the budget.
    • Benefit scenarios, with cost projections (consult your benefits broker for support and guidance).
    • Scheduling options, such as regular, extended, compressed, or hybrid shifts.
    • Vacation strategies, including costs of accrual and usage changes.
    • Premium structures, such as evenings, nights, and weekends; ensure “no pyramiding” language is included.
    • Statutory holiday provisions.
    • A comparative survey of similar organizations and unions in your region (wages, benefits, and quality-of-work-life practices).
    • Comparable collective agreements.
  7. Information Gathering
    Before drafting proposals, collect data that supports your case and demonstrates need. Suggested areas of focus include:

    • Staff complaints and concerns.
    • Challenges related to compensation or benefits.
    • Root causes of certification.
    • Key workforce data (turnover, absenteeism, age demographics, service levels).

Understanding this data will help you tailor proposals. For instance, if most employees are over 55, pension enhancements may be a priority. If the majority are in their 20s and 30s, wages and work–life balance may take precedence. The point is to spend time understanding your membership/employees and what is important to them.

  1. Proposal Development
    Once information has been gathered, your team can begin developing proposals. Use a collaborative approach to identify and prioritize key issues while remaining within your mandate. Be sure to:

    • Review templates or tables of contents from existing collective agreements to ensure coverage of standard provisions.
    • Craft proposals with both short- and long-term implications in mind.
    • Ensure language is clear, unambiguous, and well-structured.
    • Key concept: Think about who will be using your collective agreement once implemented to ensure it meets the needs of the organization.

Some particularly important clauses include:

  • Management Rights: Best drafted using the Residual Rights Theory, meaning management retains all rights not specifically limited by the agreement.
  • Recognition Clause: Should generally mirror the exact language used in the final certification document.
  • Seniority: Where seniority is relevant for your organization, any clauses must reflect a balance between union expectations and operational realities.

Final Thoughts

Developing a first collective agreement is a challenging undertaking, but with patience, thorough preparation, and a focus on building a constructive relationship with the union, the process can be managed successfully.

This checklist represents key considerations, but is not exhaustive. Every negotiation presents new challenges and opportunities. Be prepared, stay flexible, and approach the process with a commitment to collaboration. Doing so will set the stage for a strong and sustainable agreement.

Good luck!

About the Authors

Elizabeth Vosburgh’s passion for strengthening labour relations and human resources practices is informed by her experiences working in both managerial and c-suite roles, as well coaching for Queen’s IRC for the past decade. She has been involved in all aspects of labour relations, from the internal grievance process to arbitration. She has led complicated negotiations, restructuring, professional practice, complex return to work, accommodation, occupational health and safety, as well as workplace restoration. She is a sought-after advisor to senior leadership teams. As a Certified Human Resources Executive (CHRE) with the HRPA, a Registered Nurse with the College of Nurses of Ontario, and a Certified Health Executive, Elizabeth applies both her practical experience along with theory to help individuals and organizations build culturally sound labour relations and human resources programs.

Deborah Cooper has a strong background in collective bargaining across federal public service, private, and non-profit sectors. With over a decade of facilitating courses such as Negotiation Skills, Labour Relations Foundations, Grievance Handling, and Managing Unionized Environments for Queen’s IRC, she combines practical expertise with instructional leadership. Deborah has served as a mediator, adjudicator, and speaker, and was formerly Executive Director of a federal union representing multiple bargaining units nationwide. Her career includes in-house roles with federal bargaining agents and an appointment as General Secretary of the National Joint Council, where she helped integrate directives into collective agreements. Deborah holds an Honours Bachelor Degree from the University of Ottawa, a Law Degree from the University of Western Ontario, and Certificates in Labour Relations and Advanced Human Resources from Queen’s University IRC. She has been a member of the Law Society of Ontario for over 25 years.

 

Download Article PDF: Navigating Your First Collective Agreement

Download Checklist: First Collective Agreement Negotiation Checklist

Picking Your Investigator: The Tension Between Cultural Competency and Procedural Fairness

by Leave a Comment

Background

John, a Black Canadian born to Caribbean parents, is a Marketing Analyst at a mid-sized health products company in Oakville, Ontario. He has been with the company for five years. The company’s Managing Director, Mike, is a middle-aged white man who has been with the company for 15 years and hired John into his current role.

Over the years, Mike has made several comments that John has perceived as microaggressions. For instance, when offering him the position, Mike remarked that John would enhance the company’s image in terms of diversity. He has also made offhand comments about John being highly athletic.

John has been passed over for two team lead promotions. His performance reviews are consistently strong, and his experience is comparable to that of the selected individuals. Last month, Mike informed John that he was not selected for the most recent opening. Mike said the following:

“You are a valued member of the company, but we see you more as a ‘hands-on person’ – not everyone is cut out to be a leader. Look, we really hope to keep you here with us. Plus, we need you to play on our intramural team this spring!”

John decided to file a complaint with the Human Resources Manager. He believes Mike’s decision not to promote him was rooted in systemic racial stereotypes that exist within the company. Since he is the only Black employee, he does not trust that an investigation will be fair. As a result, John makes a request to HR that a Black investigator be appointed to investigate his complaint.

What should the HR Manager do? Does John have the right to select his investigator?

The Legal Position

Procedural fairness is the cornerstone of workplace investigations.[1] Although the level of fairness afforded is context dependent, some minimum requirements include the following: an unbiased investigator, notice, the right to be heard (including the opportunity to respond to contradictory evidence), a timely process, the right to representation, and informing the parties of the findings and potential corrective action.[2]

With respect to choosing one’s investigator, the jurisprudence is limited but offers some guidance.

  • Miller v. Canada Human Rights Commission (1996)[3]:
    • The applicant of Aboriginal origin claimed that the Commission’s use of a non-Aboriginal investigator to investigate his allegation of discrimination was procedurally unfair.
    • The Federal Court Trial Division dismissed this complaint as there was no “reasonable apprehension of bias” created by appointing a non-Aboriginal person to investigate the complaint.
    • The court determined that race is not a relevant factor in the appointment of the investigator. In fact, allowing the complainant to select the racial identity of the investigator would give rise to an apprehension of bias and violate the respondent’s right to procedural fairness.

For reference, the test for a reasonable apprehension of bias is effectively summarized as follows: “whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.”[4]

  • McConnell v. Canadian Human Rights Commission (2004)[5]
    • The applicant filed a complaint alleging discrimination on the grounds of race and ethnicity. She objected to the appointment of the investigator, insisting that it should be assigned to a woman of a visible minority group.
    • Citing the Miller case, the Federal Court reaffirmed that the complainant does not have the right to choose the investigator.
    • The appointment of an investigator who is not of the same gender or race as the complainant does not give rise to a reasonable apprehension of bias against the complainant. It therefore does not violate the duty of procedural fairness.

In summary, the jurisprudence suggests that the complainant does not have a right to pick their investigator based on their identity. Likewise, it follows that the respondent does not have this right either. Therefore, an organization is not obligated to accept these types of requests, and in certain circumstances, must reject them. However, even if there is no right to choose one’s investigator, an organization could make an accommodation or find a fair and balanced alternative.

The Case for Accommodating a Request

One compelling reason to accommodate a request would be for complaints of a violent and sexual nature, particularly sexual assault. Simply put, a female complainant may suffer trauma, become triggered, or feel unsafe in the presence of a male investigator. It is important for the parties to feel comfortable as part of the investigation, since their participation is critical for the investigator’s collection of pertinent evidence. As such, this is a practical concern for the integrity and completeness of the investigation.

Microaggressions are subtle comments or actions that convey negative messages towards individuals based on their identity.[6] These are often unintentional; therefore, it can be problematic if the investigator does not understand them and how they impact people. Combined with a lack of lived experience, investigators may not fully appreciate the nature of the complaint and the surrounding context. This could give rise to a partial investigation, which undermines procedural fairness.

The Case Against Accommodating a Request

The main concern with accommodating such a request is that it can create a reasonable apprehension of bias in the complainant’s favour that violates the respondent’s right to procedural fairness (or vice versa). Due to this legal standard, organizations should exercise diligence and caution when assessing these requests.

Furthermore, not every member of a minority group has the same lived experiences as the party making the request. Factors such as socio-economic background can greatly impact a person’s experience. Therefore, it does not necessarily follow that every racialized investigator would fully appreciate the perspective of a racialized party.

There is also the risk of tokenizing employees if their investigations are routinely related to complainants who share the same (or similar) identities as them. Moreover, there is a general and practical concern regarding resources. Not every HR department or external firm will have investigators who represent the various identities in a multicultural society like Canada.

Potential Solutions

  1. Cultural competency and trauma-informed training

Lived experience cannot be replicated. However, one method to balance concerns of cultural incompetence and procedural fairness is learned experience. Learned experience can be acquired through practice and exposure.[7] Therefore, training on cultural competency and trauma can help reduce biases and enhance trust with the parties.

Diversity and inclusivity training only serves to further educate and empower investigators, and it may assist in assessing systemic issues. Training forms part of the investigator’s learned experience and does not favour either party. The investigator is still neutral and will therefore afford all parties procedural fairness.

Whether an organization uses internal investigators or an external firm, it would be wise for would-be investigators to be trained on cultural competency and trauma.

  1. Where is the request coming from? Can we address the concern without violating procedural fairness?

Christine Thomlinson is the co-founder of Rubin Thomlinson LLP and the Managing Director of RT Workplace Training Inc. She is a leading authority in Canada on workplace investigations and graciously agreed to be interviewed. In her opinion, the reason behind the request matters.

“Employers should consider the reason for the request. Very often the underlying concern can be addressed. For example, if there is concern that a white investigator might not understand the lived experience of a complainant, the organization can assign an investigator with relevant cultural training and experience. Alternatively, if the investigator that was going to be chosen has lived experience anyway, it may not be a controversial assignment since the decision was not made to acquiesce one party’s preference.”

In light of this, I present four practices that can balance procedural fairness with the concerns raised by the parties involved in an investigation.

First, if possible, the organization should address the underlying concern behind the request. Examples of this include assigning investigators with cultural competency and trauma-informed training, as well as using external investigators for systemic allegations.

Second, the organization should accommodate practical concerns that could affect the investigation’s integrity or completeness. For example, it may be appropriate to take steps to avoid re-traumatizing individuals involved in serious complaints. In a related but distinct vein, there may be a legal duty to accommodate, such as ensuring an investigator is able to communicate in sign language for a deaf party.

Third, the organization is not being procedurally unfair if the assignment of an investigator happens to align with one of the party’s identities, so long as the decision was not made to concede to one party’s preference. Consider this practical example: a company’s HR department has a small roster of qualified investigators who happen to all be women. Upon receiving a complaint of sexual harassment from a female complainant, the investigation is assigned to one of the female investigators.

Fourth, the organization may be able to address a request in a balanced manner. An example of this would be using an investigative panel with representation from the concerned minority group.

Although this article has focused on the perspective of a complainant, it should be noted that the perspective of the respondent also matters. It is possible that a respondent may have concerns about the assignment of an investigator that could be addressed by the organization. An important takeaway stems from the duty of procedural fairness: the choice of an investigator must be fair to both parties.

Conclusion: John’s Request

How should the company handle John’s request? The jurisprudence suggests that picking an investigator at John’s request purely based on racial characteristics could give rise to a reasonable apprehension of bias.

What alternatives are available?

While there is not just one correct answer, we should consider Christine Thomlinson’s point about where the request is coming from and the reason behind the request. In this situation, John is concerned that systemic racism in the organization will prevent the investigator from drawing fair conclusions. Therefore, it is possible to balance this concern by engaging an external firm to investigate the complaint. This decision is not acquiescing to John’s request for a specifically Black investigator, but it addresses his underlying concern in a manner that is fair, neutral, and impartial to all parties.

About the Author

Dylan J. Fenton is the Managing Director – Nova Scotia for an HR consulting firm. He joined the company in November 2024. Dylan holds a Juris Doctor (J.D.) and Bachelor of Civil Law (B.C.L.) from McGill University, as well as an Honours Bachelor’s degree in Political Science from the University of Ottawa. Dylan was a 2024 Call to the Bar in Ontario. His firm specializes in conducting workplace investigations, specifically investigating complaints related to harassment, discrimination, workplace violence, and other forms of misconduct.

 

Footnotes

[1] “Marentette v Canada: The Weight of Procedural Fairness,”  Nikki Banwait, Ontario Bar Association (2024). https://www.oba.org/marentette-v-canada-the-weight-of-procedural-fairness/

[2] Ibid. See also: “Principles of procedural fairness,” Government of Canada: Office of the National Defence and Canadian Armed Forces Ombudsman (2024). https://www.canada.ca/en/ombudsman-national-defence-forces/education-information/civilian-employees/procedural-fairness.html

[3] Miller v. Canada Human Rights Commission, 1996 CanLII 20110 (FC). https://www.canlii.org/en/ca/fct/doc/1996/1996canlii20110/1996canlii20110.html

[4] “A Challenging Trial Judge or a Reasonable Apprehension of Bias?,” Practical Law Canada Corporate & Commercial Litigation (2018); Roberts v. R., 2003 CarswellNat 2822 (S.C.C.).; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CarswellNat 434 (S.C.C.).

[5] McConnell v. Canadian Human Rights Commission, 2004 FC 817. https://www.canlii.org/en/ca/fct/doc/2004/2004fc817/2004fc817.html?searchUrlHash=AAAAAQAKaW52ZXN0aWdhdAAAAAAB&offset=1859&highlightEdited=true

[6] Webster’s Dictionary (paraphrasing). https://www.merriam-webster.com/dictionary/microaggression

[7] “The Value of Lived and Learned Experiences,” Tobias Berkman and Danny Egol (2020). https://www.cbi.org/article/part-three-the-value-of-lived-and-learned-experiences/

 

Download PDF: Picking Your Investigator: The Tension Between Cultural Competency and Procedural Fairness

Navigating the Aftermath: Effective Debriefing Strategies for Internal Workplace Investigations

by Leave a Comment

Introduction

For those of us with experience in conducting internal workplace investigations, we know the process can sometimes negatively impact the workplace culture. When employers merely provide the results of the investigative process to the complainant and the respondent and then close the investigative file, they miss an opportunity to review and possibly improve their investigative process.

This missed opportunity can lead to a significant decline in trust toward management and HR when employees perceive the investigation process as unfair. Such erosion of trust can foster a culture of fear, discouraging employees from reporting misconduct.

However, there is hope. Employers can reduce the perception of mistrust and underreporting by implementing thorough post-investigation debriefs. Effective debriefs offer a structured opportunity for employers to evaluate the effectiveness of the investigation and gain insights into the process that can enhance future investigations.

Who Should Be Included in the Debrief?

In most organizations, HR plays a pivotal role in the internal workplace investigation process, and in some cases, an HR representative may even lead the investigation. Regardless, involving HR in the debriefing process is key to ensuring a comprehensive review of the investigation is conducted.

If a representative of HR did not conduct the investigation, it is crucial for the lead investigator to be included in the debriefing as they can offer valuable context regarding how the investigation was conducted as well as the rationale behind their conclusions.

Additionally, involving a department head or manager from the relevant work area is essential, as they can provide valuable insights into how the investigation’s outcomes may impact the department’s operations and team dynamics.

Lastly, and if applicable, having the employer’s legal counsel participate in the debrief may help to ensure that the employer is protected from potential liabilities.

How to Conduct an Effective Investigation Debriefing Meeting

Step 1: Timing

Select an appropriate time for the debriefing session, which allows ample opportunity to thoroughly discuss all aspects of the investigation without feeling rushed. It is important to schedule this meeting promptly following the investigation to ensure the information gathered remains “fresh”.

Step 2: Meeting Instruction

Before the meeting, a Chair should be appointed to facilitate discussion. During the session, the Chair should highlight the importance of fostering open dialogue while reminding the team to maintain confidentiality. Additionally, team members should understand that the primary focus of the meeting is to identify strategies to continually enhance the investigative process rather than dwelling on the outcomes of previous investigations.

Step 3: Review of the Conduct of the Investigation

The review of the investigative process will be the most critical aspect of the meeting. During this discussion, the team should concentrate on the execution of the investigation. Key questions to address include whether each party received procedural fairness and, if so, how it was done. Additionally, the team should evaluate the methods used by the investigator to collect evidence during the investigation, ensuring the process was ethical. The team may also examine the thoroughness of the investigation to guarantee that all relevant evidence is identified for future investigations.

Step 4: Review the Findings

The findings presented in the report should be thoroughly examined. It is important to consider whether the investigator effectively based their conclusions on the evidence collected, aligning their findings with the facts. Discussing this will also allow the team  to review the existing policies, procedures, and practices relied upon during the investigation, as they may require updates.

Step 5: Communicating Changes

An important element of the debriefing process is updating employees on any changes to the investigative processes and procedures. This communication is essential as it fosters a sense of transparency and fairness among employees.

Conclusion

Internal workplace investigations are an important yet challenging aspect of maintaining a healthy organizational culture. While these investigations can inadvertently lead to negative perceptions and diminished trust, employers have the opportunity to turn this around through diligent post-investigation debriefing. By establishing a comprehensive debriefing process that involves key stakeholders, employers can gain invaluable insights into their investigative practices and procedures.

Through effective debriefs, employers can assess fairness, refine processes, and ultimately promote a culture of transparency and continuous improvement. When employees see that their concerns are taken seriously and that there is a commitment to enhancing the investigative process, it fosters trust and encourages them to report misconduct. By prioritizing these measures, employers can navigate the complexities of workplace investigations while ensuring a more positive and productive work environment for all.

About the Author

Devan Corrigan

Devan Corrigan is a seasoned expert in workplace investigations and labour relations, bringing over 20 years of human resources experience to his consulting firm, founded in 2017. His firm specializes in conducting workplace investigations, specifically investigating complaints related to harassment, discrimination, workplace violence, and other forms of misconduct. He holds a Master of Industrial Relations from Queen’s University, an Honours Degree in Psychology, and a certificate in Human Resources Management from Saint Mary’s University. He has written several articles for Queen’s IRC, including Fairness in Workplace Investigations: How Much Should Respondents Know?, Reducing Participant Stress Before a Workplace Investigation and The Myth of Body Language as a Credibility Assessor.

Devan is the lead facilitator for the Queen’s IRC Fact-Finding and Investigations program.

How Workplace Restoration Boosts Employee Well-being

by Leave a Comment

In recent years, both in Canada and globally, there has been a noticeable decline in individual well-being, with employees facing increased levels of stress and anxiety. This overwhelming sense often stems from workplace conflicts, unresolved tensions, and deteriorating work cultures. Such factors lead to disengagement, burnout, and, ultimately, high turnover rates, highlighting the urgent need for effective workplace restoration strategies that promote healthier, more resilient organizational cultures.

Our well-being influences every aspect of our lives, impacting personal relationships, interactions with others, and our perception of events and work. Many employees experience anxiety and trepidation about attending work where they do not feel safe to be their authentic selves. An unhealthy workplace can result from damaging behaviours and practices that diminish employee well-being, productivity, and engagement. These include poor leadership that sets a negative tone, lack of clear communication leading to confusion and distrust, and high stress levels due to constant pressure without adequate support. Negative interpersonal dynamics, such as bullying and cliques, create a hostile atmosphere. At the same time, a lack of work-life balance, excessive workloads, and the expectation of constant availability can drive burnout. Discrimination and harassment significantly undermine safety and morale, while organizational unfair practices, such as inequity in pay and promotions or micromanagement, stifle growth, motivation, and satisfaction. A lack of recognition and reward can also lead to high turnover, necessitating comprehensive changes in workplace culture, management, and policies to address these issues effectively.

Workplace conflicts contribute to substantial organizational costs beyond interpersonal disputes. Unresolved conflicts decrease productivity as team dynamics suffer and individuals spend more time navigating disputes than focusing on tasks. Absenteeism often increases as employees avoid stressful environments, and presenteeism—being physically present but mentally distracted—also impacts work output. Such environments drive talented individuals to seek better opportunities, increasing turnover and the associated costs of recruiting and training new staff. Furthermore, employee engagement drops, stifling innovation and lowering overall morale. Timely resolution of these conflicts fosters a positive organizational culture that enhances productivity, employee satisfaction, and well-being.

When to Consider Workplace Restoration?

It is crucial for leaders to employ workplace restoration techniques proactively. Whether rebuilding trust after a breakdown in relationships or addressing disruptions like conflicts, harassment, or bullying, workplace restoration is essential. This interest-focused process involves deliberate steps to improve communication, resolve disputes, and foster a healthier, more positive workplace culture. There is no one-size-fits-all strategy; workplace health must be consistently monitored and nurtured. Leaders must ensure the workplace is safe and develop effective mitigation strategies.

Workplace restoration is more than resolving conflicts; it enhances team dynamics and bolsters individual emotional well-being. Proactive implementation of restoration processes helps guard against unhealthy environments. When issues negatively affect the company’s health, efficiency, or morale, it is vital to repair relationships and rebuild trust. This is especially true following significant changes like mergers or shifts in leadership, where restoration can realign teams and clarify roles, facilitating a smooth transition. Addressing complaints of harassment or discrimination is crucial to restoring faith in organizational processes and reinforcing a respectful, safe culture. Other indicators necessitating intervention include high turnover, absenteeism, increased complaints, low employee engagement or satisfaction, and poor team performance. Addressing these issues can reconnect employees with organizational goals and improve teamwork and productivity. Recovery from workplace accidents, addressing regulatory non-compliance, and responding to stakeholder feedback are critical for maintaining safety, compliance, and a healthy workplace.

Implementing these strategies stabilizes the workplace, enhances morale and productivity, and contributes to the organization’s long-term success. Creating an action plan and addressing issues head-on positively affects employee wellness, making them feel seen and heard. This may help employees feel safer, leading to better attendance, higher engagement, and greater productivity. When employees are well, they perform their best.

Needs Assessment for Workplace Restoration

When assessing the need for workplace restoration, leaders should be vigilant in spotting symptoms that suggest deeper underlying issues, such as a lack of trust between employees and management, unresolved grievances, and inequitable policies. Signs of deteriorating communication and long-ignored issues embedded in the culture also signal the need for intervention. Subtle changes in employee behaviour, such as avoiding social gatherings or increasing tense interactions, should not be overlooked. Low employee engagement scores, red flags uncovered during a cultural assessment, increased complaints, and an overall feeling of tension indicate broader issues such as potential conflicts, harassment, leadership failures, or the impacts of organizational changes that affect morale, productivity, and trust. Before implementing any restoration strategies, it is vital to identify and understand these specific issues that have disrupted the workplace environment. Addressing them requires a comprehensive approach to uncovering and resolving the root causes. Recognizing and understanding the full implications of these issues is the first step toward effective workplace restoration.

Workplace Restoration Techniques

Effective workplace restoration techniques can address and mend organizational issues, fostering a healthier work environment. Tailored one-on-one coaching can help individuals overcome specific challenges, while leadership training equips managers to support productive teams. Team-building activities and establishing team charters enhance collaboration and clarify objectives and norms. Workplace mediation serves as a neutral process to resolve conflicts and restore relationships. Training on cultural sensitivity, equity, diversity, inclusion (EDI), and unconscious bias raises awareness and promotes a respectful culture. Wellness initiatives and programs support employee’s mental and physical health, which is crucial for overall well-being. Clear conflict resolution policies and safe spaces for open communication are foundational for maintaining trust. Together, these strategies lay the groundwork for sustained improvement and employee satisfaction.

Employee involvement is crucial in workplace restoration; it cannot simply be done to them but must actively engage them for effectiveness. For restoration efforts to succeed, employees must be integral contributors to the dialogue and decision-making processes that shape their work environment. This participatory approach ensures that solutions are tailored to the workplace’s needs and resonate with those directly affected by the changes. By soliciting input, encouraging feedback, and fostering a sense of ownership among employees, organizations can build trust and commitment to the restoration process. This engagement level helps transform theoretical strategies into practical experiences that genuinely improve workplace dynamics and employee well-being.

The Impact of Workplace Restoration on Employee Well-being

Workplace restoration significantly boosts employee well-being by addressing and mitigating stressors within the work environment. This approach enhances relationships among staff and between employees and management, which is crucial for reducing workplace stress and improving job satisfaction. By implementing fair and transparent policies, restoration efforts rebuild trust in organizational leadership, fostering a psychologically safe environment where employees feel valued and heard. This enhances communication by prioritizing honest and respectful interaction, which helps employees and leaders understand each other’s perspectives. Training on equity, diversity, and inclusion (EDI) and cultural sensitivity promotes an inclusive culture that respects diverse perspectives, reducing fears of discrimination and exclusion. Revising workload management and clarifying roles alleviates job-related stress. Supportive measures like wellness programs and clear conflict resolution policies contribute to mental health and provide a safety net, ensuring employees have the resources to voice concerns. These efforts enhance individual well-being and drive engagement and productivity, creating a supportive and thriving work environment. Employees become more inclined to collaborate, share ideas, and support one another, and physical health improves as stress often manifests in physical symptoms.

When workplace issues are left unresolved, the stress experienced by employees can compound, making tensions seem insurmountable. The uncertainty of unresolved conflicts and the fear of unknown outcomes can significantly heighten workplace anxiety. The organization’s responsibility is to address these issues head-on, providing a clear path to resolution. Implementing workplace restoration techniques offers employees a roadmap, outlining what to expect and involving them in the process. This can significantly alleviate their stress and give them a sense of control over the outcome. An organization can significantly enhance overall wellness by equipping employees with the necessary tools to manage conflicts and by ensuring they have an avenue to express concerns. Such proactive measures help diffuse immediate tensions and foster a long-term workplace culture of openness and trust.

Workplace restoration provides immense benefits at the team and organizational levels, yet its most significant impact is seen at the individual employee level. Organizations that invest in comprehensive restoration efforts can profoundly influence someone’s career trajectory and personal life. These initiatives foster an environment of trust and appreciation by helping employees feel safe and equipping them with practical tools for managing conflict. Such measures ensure employees understand their value within the company, which, in turn, boosts their confidence and job satisfaction. This supportive work environment promotes wellness, builds loyalty, and contributes to the well-being of employees, transforming them into engaged, healthy brand ambassadors. These positive outcomes not only enhance individual lives but also bolster the overall success and reputation of the organization.

Concluding Thoughts

People are the heart of every organization. Investing in effective strategies to improve the workplace aligns with ethical management practices and makes sound business sense. Such investments can profoundly influence individuals’ lives, professionally and personally, creating a ripple effect that enhances the entire organization. By prioritizing and implementing workplace restoration and well-being initiatives, organizations make a lasting commitment to their employees’ lives,  fostering a more dynamic, resilient, and productive work environment. Ultimately, investing in your people is not just the right decision—it’s a transformative one that echoes far beyond office walls.

About the Author

Lisa Salvini

Lisa Salvini, CHRL, CCP, is the owner and principal consultant at a consulting company specializing in human resources, mediation, governance, and strategic planning. With over 25 years of experience as an HR leader, Lisa has worked with organizations across various industries to foster healthy, productive workplaces. She is highly skilled in workplace restoration, helping teams navigate conflict, rebuild trust, and create inclusive environments where employees can thrive. Lisa’s expertise in policy development, leadership coaching, and organizational strategy enables her to deliver practical, results-driven solutions tailored to each client’s unique needs.  Lisa is a lifelong learner and holds a Queen’s IRC Certificate in Labour Relations.

Download PDF: How Workplace Restoration Boosts Employee Well-being

Workplace Accommodations: Fostering Fairness and Inclusivity in Canadian Workplaces

by Leave a Comment

Introduction

The duty to accommodate stands out as a key principle in Canadian law that supports workplace fairness and inclusivity. This duty requires employers to make reasonable adjustments in the workplace for employees facing barriers due to disabilities, religious beliefs, family status, or other protected grounds. In recent years, family status has emerged as a pressing issue, with increasing recognition of the need for employers to consider family-related obligations. While the duty to accommodate is significant, employees’ rights are not unfettered; accommodations must be reasonable and balanced against the needs of the workplace and employees must participate reasonably in the accommodation process.

Embracing the duty to accommodate is not only about legal compliance, but also is a vital part of broader diversity and inclusion measures that foster a workplace culture where all employees can thrive. When organizations actively address individual needs, they create a more inclusive environment, boost morale, and enhance productivity, ultimately benefiting everyone involved.

The duty to accommodate is grounded in applicable human rights legislation, providing a legal framework for involved parties. All stakeholders involved (including employees, unions where applicable, and employers) are required to participate in the process with due diligence and good faith. This collaborative approach is essential for effectively addressing accommodation needs and ensuring compliance with legal obligations. This article will explore the significance of accommodation in the workplace, outline the legal responsibilities involved, and provide best practices to foster a more inclusive and productive environment for all.

Legal Framework

Canadian employers have a duty to accommodate employees based on protected grounds (such as race, gender, disability, and religion) under applicable human rights legislation. Applicable human rights legislation is governed by provincial law for provincially regulated employers and federal law for federally regulated employers. Employers are typically required to accommodate employees based on protected grounds to the point of “undue hardship.” For example, the Ontario Human Rights Code outlines these protected grounds and mandates that employers take reasonable steps to accommodate individuals up to the point of “undue hardship.” [1] This standard requires an assessment of the potential impact of accommodation on the organization, considering factors such as financial cost, health and safety, and the overall operation of the business.

The duty to accommodate necessitates active participation from all parties involved, including employers, employees, and unions, where applicable. Upon receiving an accommodation request, employers are required to engage in an interactive process to explore viable options while making a genuine effort to address the individual’s needs. Employees also bear certain responsibilities, such as clearly communicating their needs and cooperating throughout the accommodation process, which fosters collaborative efforts toward an effective solution. A recent legal decision outlined below emphasizes the obligations of employees in this context, indicating that a human rights claim may be unsuccessful if the employee fails to actively participate in the accommodation process. Furthermore, unions, when applicable, have a legal obligation to engage in the accommodation process and to fairly represent their affected members.

Human rights legislation often interacts with other legislative frameworks, such as employment standards legislation. In Ontario, for instance, the Employment Standards Act, 2000 sets out minimum employment rights, while the Ontario Human Rights Code provides a broader framework for protection against discrimination and the duty to accommodate. Employers must navigate these overlapping obligations, ensuring compliance with all applicable legislation, and typically, if multiple statutes address the same legal issue, the strongest protections will prevail.

Protected Grounds

With respect to who is entitled to accommodation, individuals are protected based on certain grounds that are covered by applicable human rights legislation, including grounds such as:[2]

  • Race
  • Ancestry
  • Place of Origin
  • Colour
  • Ethnic Origin
  • Citizenship
  • Creed
  • Sex
  • Sexual Orientation
  • Gender Identity
  • Gender Expression
  • Age
  • Record of offences (in certain contexts)
  • Marital Status
  • Family Status
  • Disability

Beyond the specifically cited grounds, there are also general protections for “analogous grounds.” “Analogous grounds” refer to categories not explicitly listed as protected grounds in human rights legislation but are treated similarly due to their potential for discrimination. This concept acknowledges that individuals may face discrimination based on characteristics not explicitly mentioned in applicable legislation. Determining whether a ground is analogous often involves a case-by-case analysis, considering the impact of the discrimination and the specific context.

Below are some examples of individuals who might be entitled to human rights-based employment accommodations:

  • Employees with Disabilities: Individuals requiring adjustments for physical or mental disabilities, such as modified workstations or flexible schedules.
  • Pregnant Employees: Employees needing accommodations related to pregnancy, such as modified duties or time off for medical appointments.
  • Employees with Religious Practices: Individuals needing time off or schedule adjustments to observe religious holidays or practices, such as prayer breaks.
  • Caregivers: Employees who have family caregiving responsibilities, requiring flexible hours or leave to care for children or elderly relatives.
  • Transgender or Gender Non-Conforming Employees: Individuals who may require changes to dress codes, restroom access, or support during gender transition.
  • Older Workers: Employees who might need modifications to their work environment or duties due to age-related health issues.

Types of Accommodation

Below are examples of various workplace accommodations that may be provided to comply with applicable human rights legislation.

A. Physical Accommodations
  • Parking Spaces: Designated accessible parking spots close to the entrance.
  • Wheelchair Access: Ramps, wide doorways, accessible washrooms.
  • Accessible Workstations: Adjustable desks and ergonomic chairs to meet diverse needs.
  • Accessible Office Equipment: Equipment (like kitchen appliances and/or printers) at an accessible height for wheelchair use.
  • Lighting Adjustments: Adjustable lighting to accommodate vision needs.
  • Quiet Spaces: Designated areas for employees who require a low-distraction environment.
  • Break Rooms: Accessible and inclusive break areas with appropriate seating, prayer rooms and spaces appropriate for same.
  • Emergency Evacuation Plans: Customized plans for individuals with mobility challenges.
  • Signage: Clear, accessible signage in large print and braille.
  • Maintenance of Equipment: Regular checks to ensure all accessibility features are functional.
B. Policy Modifications
  • Flexible Work Hours: Allowing employees to adjust their schedules to fit personal needs or health requirements.
  • Remote Work Options: Enabling employees to perform their duties from home or other locations which can assist with areas such as family status and medical issues.
  • Modified Dress Codes: Accommodating employees’ cultural or religious practices through adjustments to dress policies.
  • Adjusted Performance Metrics: Evaluating employees based on their contributions rather than arbitrary benchmarks, ensuring fair assessments.
  • Support for Family Responsibilities: Implementing policies that allow for parental leave, caregiving support, or flexible arrangements for employees with family obligations.
C. Technological Supports (e.g., assistive technologies)
  • Ergonomic Workstations: Adjustable furniture for comfort and accessibility.
  • Adaptive Keyboards and Mice: Designed for limited dexterity.
  • Screen Magnification Software: Enlarges on-screen content for low-vision users.
  • Screen Readers: Read text aloud for visually impaired users.
  • Accessible Document Formats: Tools for creating Braille and large print documents.
  • Speech-to-Text Software: Converts speech into written text.
  • Hearing Aids: Amplify sound for those with hearing loss.
  • Video Relay Services: Facilitate communication via sign language interpreters.
  • Text-to-Speech Software: Converts written text to spoken words.
  • Communication Devices: Tools for individuals with speech impairments.
  • Environmental Control Systems: Voice or switch-operated control of workspace.
  • Assistive Listening Devices: Enhance sound in group settings.
  • Remote Work Technologies: Facilitate flexible work arrangements.
  • AI-Powered Tools: Personalized assistance for various needs.

Recent Case Law

Recent case law underscores the obligation of employers to fulfill their duty to accommodate to the point of undue hardship. It also emphasizes that employees have a vital role in this process and may not succeed in their human rights claims if they do not fully engage in the accommodation dialogue or if the accommodation request results in undue hardship. The following recent decisions illustrate these key principles:

Employee Failed to Participate in Accommodation Process – Aguele v. Family Options Inc., 2024 HRTO 991(“Aguele”):[3] A recent decision from the Human Rights Tribunal of Ontario (“HRTO”) provides important guidance for employers responding to requests for schedule changes from these employees. The HRTO found that the employee, while initially proactive in seeking accommodation for childcare needs, ultimately failed to fully engage in the accommodation process. The HRTO noted that the employee did not provide sufficient information or explore alternative solutions with the employer, which limited the employer’s ability to accommodate the request effectively. The HRTO concluded that the lack of collaborative engagement on the employee’s part contributed to the unsuccessful outcome of the accommodation request, reinforcing that both employers and employees must work together to achieve effective accommodations. The decision emphasizes that employees have a responsibility to actively participate in the accommodation dialogue, including providing necessary details about their circumstances and being open to potential compromises.

Employer Failed to Engage in Accommodation Process – Silliker v. Suncor Energy, 2024 AHRC 91 (“Silliker”):[4] In Silliker, the Alberta Human Rights Tribunal ruled in favour of an employee who claimed her employer failed to adequately accommodate her mental health disability upon her return to work. After taking a leave of absence in 2018, she was cleared to return in 2019, with her doctor providing a specific return-to-work plan. However, Suncor rejected this plan and proposed alternative arrangements that did not meet her needs. When the employee declined Suncor’s proposal, her employment was terminated on the grounds that no suitable accommodations were available. The Tribunal found that Suncor did not show a genuine willingness to engage in the accommodation process or explore options that would enable the employee to return safely. This case highlights the obligation of employers to actively participate in the accommodation process, take employees’ reasonable proposals seriously, and ensure that accommodations align with the needs of the employee.

Accommodation Request Amounted to Undue Hardship – Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235 (“Disbrow“):[5] In Disbrow, the employee worked as a security attendant with the employer for 8 years. After knee surgery, the employee developed arthritis which limited her ability to climb stairs. This limitation impacted her ability to perform patrol duties associated with her job, which required frequent stair use. The employee proposed various accommodations, including accessing elevators during her shifts, reducing patrol duties, and being transferred to alternative custodial positions within the organization. The employer claimed it could not accommodate the employee without incurring undue hardship, stating that allowing elevator use could pose safety risks (due to frequent breakdowns), reducing her patrol duties would not meet operational needs, and that the only available position was a custodial job which the employee was not interested in. The Tribunal found that the employer made reasonable efforts to accommodate the employee and ruled that the accommodations she sought were either impractical or would result in undue hardship. This case demonstrates there are limits to the duty to accommodate and undue hardship can be demonstrated by the employer through evidence.

Employer Failed to Accommodate Prayer Room – Bueno v. Energy Call Solutions, 2024 HRTO 619:[6] In this case, the employee informed the employer during her hiring process that she was a devout Muslim and needed to pray periodically throughout the day. After working for the employer for about a year, the employee requested a change to her schedule during Ramadan to accommodate her breaking of the fast to attend a mosque. The employer denied this request and advised that she would have to find someone to trade shifts with. The employee later requested a quiet space for prayer, which the employer denied due to space constraints. When the employee attempted to use the lunchroom for prayer, the employer disrupted her and tried to stop her from using the space. The employer argued that providing adequate accommodation for prayer was not possible without creating hardship, citing practical difficulties and employee complaints about her use of the lunchroom. The Tribunal found the employer had failed to accommodate the employee by denying her request to switch shifts during Ramadan, interrupting her during prayer, and failing to provide adequate space in the workplace for prayer. The Tribunal highlighted that creed and religious-based accommodations may be offered by modifying break policies, using lunch or break times for prayer, providing alternative arrival and departure times, and/or offering a private prayer space. It also noted it was the employer’s obligation to educate staff about the employee’s legal right to pray and to implement policies in the workplace recognizing such right.

Best Practices for Employers

Failure to fulfill the duty to accommodate can lead to significant legal consequences for employers, including discrimination claims under applicable human rights legislation. Employers are required to engage in an interactive process with employees to identify and implement reasonable accommodations, ensuring these do not impose undue hardship on their operations. This process involves assessing individual needs and exploring various options that enable employees to perform their jobs effectively. Non-compliance can result in investigations, costly litigation, and reputational damage, highlighting the critical importance of proactive measures to foster an inclusive workplace and ensure legal compliance. Furthermore, employers who prioritize accommodation not only mitigate legal risks but also enhance employee morale and productivity, contributing to a more positive organizational culture.

To mitigate risk, employers should establish clear policies on accommodation requests, ensuring compliance with human rights laws. Regular training and open dialogue help prevent issues and promote a diverse, inclusive work environment where all employees can thrive.

Below is a list of best practices for employers to focus on to maintain legal compliance regarding the duty to accommodate:

  1. Policies: Develop and communicate policies outlining the accommodation process and have policies regularly updated by legal counsel.
  2. Training: Provide regular training for management and staff on human rights and the duty to accommodate.
  3. Dialogue: Maintain open communication with employees to discuss their accommodation needs.
  4. Individual Assessments: Evaluate each accommodation request on a case-by-case basis.
  5. Documentation: Keep detailed records of accommodation requests and decisions.
  6. Explore Options: Consider various accommodations, such as modified schedules or assistive technology.
  7. Monitor Arrangements: Regularly review accommodations to ensure they remain effective.
  8. Supportive Culture: Foster a workplace culture that values diversity and inclusion.
  9. Designate Contacts: Assign a specific individual or team to manage accommodation requests.
  10. Stay Informed: Keep updated on changes in legislation and best practices for compliance.

Conclusion

The duty to accommodate in Canadian human rights law is designed to ensure equitable treatment in the workplace. This duty involves the equal and fair participation of multiple parties, including employees and, in unionized environments, their representatives. Employees must reasonably participate in this process and cannot simply demand any accommodations they desire; they have a responsibility to communicate their needs clearly and cooperate in the accommodation process. When a union is involved, it must actively and fairly participate in the accommodation process.

Employers are legally obligated to provide reasonable accommodations based on protected grounds, which requires engaging in open dialogue with employees and carefully assessing individual needs while balancing the operational requirements of the organization. Understanding and fulfilling this duty not only helps employers meet their legal obligations but also fosters a more inclusive and supportive work environment. By implementing best practices—such as clear policies, regular training, and ongoing communication—employers can effectively mitigate legal risks while enhancing employee morale and productivity. Ultimately, prioritizing accommodation demonstrates a commitment to fairness and respect for all employees, which is essential for fostering a productive and inclusive workplace.

About the Authors

Deborah Hudson

Deborah Hudson is one of the founding partners of Hudson Sinclair LLP, where she represents both employers and employees in all aspects of labour and employment law. She was called to the Ontario Bar in 2008, and she has practiced exclusively in the areas of labour and employment for her entire career. Deborah regularly advises both employers and employees in relation to matters occurring at all stages of the employment relationship (including areas such as contracts, accommodations, human rights matters and termination). Deborah also conducts workplace investigations as an external, independent investigator relating to various workplace circumstances and allegations including harassment/bullying, human rights matters, privacy breaches and fraud.

Deborah is a facilitator with two Queen’s IRC programs: Building and Leading Teams and Fact-Finding and Investigations.

Sarah Maude

Sarah Maude is a labour and employment associate with Hudson Sinclair LLP. Sarah provides both employers and employees with advice and representation in the public and private sectors on a wide range of labour, employment and human rights issues. Sarah is a trusted advocate and has represented her clients before the courts, human rights tribunals, and labour relations boards. She regularly assists clients with human relations issues and workforce management at all stages of the employment lifecycle.

Reference List

Human Rights Code, RSO 1990, c. H.19, s. 17(2).

Aguele v. Family Options Inc., 2024 HRTO 991.

Silliker v. Suncor Energy, 2024 AHRC 91.

Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235.

Bueno v. Energy Call Solutions, 2024 HRTO 619.

Footnotes

[1] Human Rights Code, RSO 1990, c. H.19, s. 17(2).

[2] This list of protected grounds is taken from Ontario’s Human Rights Code. The exact list of protected grounds varies in each jurisdiction.  For example, not all provinces list “gender expression” as a protected ground although this arguably would be an analogous ground if not explicitly listed.

[3] Aguele v. Family Options Inc., 2024 HRTO 991.

[4] Silliker v. Suncor Energy, 2024 AHRC 91.

[5] Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235.

[6] Bueno v. Energy Call Solutions, 2024 HRTO 619.

 

Download PDF: Workplace Accommodations: Fostering Fairness and Inclusivity in Canadian Workplaces

Ontario’s Bill 124 – Impact, Strategies, and Aftermath

by Leave a Comment

Background

In June 2019, the Ford government in Ontario proposed Bill 124: Protecting a Sustainable Public Sector for Future Generations Act, 2019. This legislative measure aimed at long-term sustainability in the public sector, advised that any collective agreements in effect on June 5, 2019, would be subject to salary caps. These caps, known as a “financial moderation period” were to commence the day after the expiration of these agreements (Goldblatt Partners LLP, 2019).

The moderation period mandated any salary settlements across Ontario’s public sector not exceed one percent. This limitation applied to all public sector unions (and non-unionized groups), restricting pay increases to one percent annually for three years under the terms of Bill 124 (OPSEU SEFPO, 2021).

Once passed and proclaimed on October 31, 2019, Bill 124 was retroactively enforced to June 5, 2019. This meant any settlements, including arbitration awards, achieved after June 5, 2019, were subject to the restrictions contained in Bill 124 or risk being declared void (Goldblatt Partners LLP, 2019).

Bill 124 also included Anti-Avoidance Measures, which prevented public sector employers from providing compensation before or after the applicable moderation period to offset the imposed financial cap. The effect meant that agreements expiring on or shortly after June 2019, with three-year terms, would be subject to further renewal under the legislation before its eventual repeal (OPSEU SEFPO, 2021).

In November 2019, four Ontario teaching unions launched the first constitutional challenge against the government and Bill 124, claiming it was a direct attack on the bargaining rights of public sector workers. It would take more than three years for the Ontario Superior Court to rule Bill 124 unconstitutional, and on February 23, 2024, the Ontario government repealed the Act in its entirety, forcing the sector to adapt quickly (Law Times, 2021).

Impact

My perspective is informed through my experience with bargaining in the higher education sector in Ontario. The impact of Bill 124 on each institution varied depending on where they were in their bargaining cycle. Active bargaining occurring on or after June 5, 2019, required the clawback of any monetary proposals exceeding the financial cap imposed by Bill 124. Those who had recently ratified newly negotiated agreements were not required to comply with the three-year moderation period until their agreement’s expiration and renewal (OSSTF/FEESO, 2019).

With most public sector employers managing multiple union groups, each subject to different negotiation timelines across multiple sectors, the impact of the legislation was significant for some and nominal for others. Institutions that were able to defer the moderation period to the latest possible date may have avoided it altogether. This was the case for one specific Ontario university that freely negotiated increases, setting a precedent for many arbitrated awards in higher education (OPSEU SEFPO, 2021).

The impact of the Bill was particularly devastating for public sector employers unable to set aside budget reserves to cover retroactive salary awards following the legislation’s repeal (Law Times, 2021).

Strategies

Different strategies for managing a possible repeal of Bill 124 were employed across the public sector. The strategy we adopted was to pre-negotiate the outcome, should the Bill be repealed. In doing so, it was important to differentiate between repeal and appeal as these represented distinct stages in the process, each triggering a different implementation date.

Other organizations chose to agree to a Letter of Understanding in which they would open any monetary articles should the Bill be repealed. However, there are two major concerns with this approach. First, to achieve a settlement there may have been non-monetary concessions that would not have been agreed to under typical conditions, and these would not be reversed with a monetary re-opener. Second, the wage reopener would be subject to the agreement of both parties with arbitration as the agreed-upon form of dispute resolution should there be an impasse. These arbitration awards have been very rich with affordability not seeming to be a major factor (Law Times, 2021).

Our approach of pre-negotiating the outcome did not require the parties to re-open the collective agreement and return to the table. We simply applied the monetary agreement upon the effective date of the repeal. These monetary agreements were prospective only and within our budgeted mandate, limiting the risk of an arbitrated financial award that was not affordable for the university (Goldblatt Partners LLP, 2019).

Aftermath

In the aftermath of Bill 124’s installation and repeal, significant market differentials have emerged due to large disparities in monetary agreements across the public sector (Law Times, 2021). Those currently negotiating or preparing to enter negotiations will likely encounter sector compensation comparator data that highlights the relative position of the applicable union group today and before Bill 124. Over the past several months, the province has been renegotiating contracts and repaying tens of thousands of workers (Goldblatt Partners LLP, 2024).

The Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO), which represents 16,000 workers in the Ontario Public Service, received a 7.5 percent salary increase with back pay in October (Goldblatt Partners LLP, 2024). The Ontario Nurses Association was granted a 6.75 percent increase for the Bill 124 years, while civil servants were given 9.5 percent for their three-year period (OSSTF/FEESO, 2019). These settlements, largely unaffordable and with no government assistance, may have other significant consequences such as future and continued budget cuts as well as layoffs.

Having recently negotiated five post-Bill 124 Collective Agreement renewals, we granted significant market adjustments to bring employees on par with their relevant sector comparators. However, the inability to afford retroactive increases may leave employees feeling unsatisfied with the outcomes, potentially jeopardizing the ratification process for many employers. For employees without union representation, the impact may never be fully reversed (Goldblatt Partners LLP, 2024).

About the Author

Allison Arnold

Allison Arnold is a seasoned labour relations specialist with over 30 years of Human Resources experience within the broader public sector, with a particular focus on higher education. As Chief Negotiator, Allison has successfully led multiple negotiations with unions spanning from OSSTF, OPSEU, CUPE, PSAC, UFCW, IATSE, and WLUFA. Certified in Conflict Management and Mediation from Conrad Grebel University College, Allison demonstrates exceptional leadership in grievance and arbitration hearings, providing strategic guidance during periods of labour dispute. An alumnus of Queen’s Masters of Industrial Relations and the Queen’s University IRC, Allison employs a strategic and interest-based approach to collective bargaining. Throughout her career Allison has held several key positions, including AVP Human Resources and Director of Faculty and Staff Relations at Wilfrid Laurier University. She is passionate about mentoring the next generation of labour relations and conflict resolution professionals.

 Bibliography

Goldblatt Partners LLP. (2019, November 9). Ford government passes Bill 124 – updated. Goldblatt Partners LLP. https://goldblattpartners.com/news-events/news/post/ford-government-passes-bill-124/

Goldblatt Partners LLP. (2024, February 12). Court of Appeal upholds Bill 124 decision. Goldblatt Partners LLP. https://goldblattpartners.com/experience/notable-cases/post/court-of-appeal-upholds-bill-124-decision/

Law Times. (2021, February 14). Public-sector unions file evidence in Charter challenge of law capping compensation increases. Law Times. https://www.lawtimesnews.com/practice-areas/labour-and-employment/public-sector-unions-file-evidence-in-charter-challenge-of-law-capping-compensation-increases/337805

OPSEU SEFPO. (2021, October 19). LockTalk 2: Everything you wanted to know about Bill 124. OPSEU SEFPO. https://opseu.org/news/locktalk-2-everything-you-wanted-to-know-about-bill-124/135295/

OSSTF/FEESO. (2019, June 24). Public Sector Wage Caps—A Summary of Doug Ford’s Bill 124. OSSTF Update. https://osstfupdate.ca/2019/06/24/public-sector-wage-caps-a-summary-of-doug-fords-bill-124/

 

Internal Workplace Investigations: Considerations and Strategies

by Leave a Comment

Having conducted both internal and external investigations throughout my career, it has been my experience that there are legitimate reasons why organizations may choose to conduct a workplace investigation internally as opposed to hiring an external professional investigator. However, to be effective, one must be conscious of the considerations unique to internal investigations, as well as inform oneself of and apply key strategies to overcome common concerns.

“Votre curriculum vitae, s’il vous plaît.”

The prerogative to use an internal investigator is implicitly granted in certain Ontario legislation such as the Occupational Health and Safety Act, which requires employers to conduct an investigation into workplace harassment “that is appropriate in the circumstances” but does not specify who the investigator, or what their qualifications, should be.[1] Even in extreme cases where a Ministry of Labour inspector orders an employer to conduct a workplace investigation, published guidance requires an “impartial person possessing such knowledge, experience, or qualification as are specified by the inspector”, noting that in some circumstances, this could conceivably be an internal employee, possibly from a corporate office, another franchise, etc.[2]

The requirement for investigative experience, qualifications, and training is also something sought by courts and human rights tribunals, however; there have been cases where they have gone further, criticizing workplace investigations where the investigator does not also have experience conducting investigations on subject matters relevant to the allegations at hand (e.g. sexual harassment).

The B-Word

However, as even the most experienced investigators understand well, no two investigations are identical, and each presents its own unique set of challenges. Some of these challenges are exacerbated by virtue of the investigation being conducted internally and thus having to overcome the ‘B-word’, considered deadly to most investigations. Through no fault of the assigned internal investigator, inherent actual and/or perceived bias looms over internal investigations like an ominous spectre given existing relationships and connections across the organization. Further, there are individuals and groups in orbit that may have a curious but unrequired interest in the progress and outcome of an investigation, such as other HR professionals, managers, labour relations departments, unions, etc., with whom the investigator may have a past and/or desired future working relationship (and who in fact may become involved in the aftermath of the investigation, such as for discipline, reassignment, etc.).

This is particularly relevant for a respondent employee who might have a less-than-spotless record, as the perilous introduction of similar-fact evidence can arise. Additionally, in serious cases where management decides on termination following an investigation, one must be wary of whether management was looking to get rid of this person prior to the investigation, and the investigation may now be the perfect excuse (regardless of the findings).

As daunting the concern of bias is, there yet exist other challenges and considerations unique to internal workplace investigations. To more easily frame these, we’ll discuss them next in the context of the commonly considered four fundamentals of workplace investigations, Timeliness, Thoroughness, Confidentiality, and Fairness.

Tick, Tock

Speaking to both the responsiveness with which an organization reacts to a complaint as well as the duration of time until the investigation is concluded, the fundamental of timeliness’ raison d’être is not only as a duty of care towards achieving distributive justice for a complainant (demonstrating the organization’s serious commitment to resolving complaints), but also as a practical matter to achieve procedural justice (since memory fades with time and so with it the details that could make all the difference in an investigator’s findings of fact).

From a trauma-informed perspective, an unresolved complaint can be an anxiety-provoking situation regardless of the employee’s role in the investigation and even if it has been determined from a physical and/or psychological safety perspective (medically or otherwise) that the employee can continue to work during its course despite the experiencing of awkwardness, discomfort, worry, etc.

However, notwithstanding the foregoing considerations, HR departments are often understaffed since they are frequently seen as a cost centre, with smaller organizations also having less specialization in the roles, meaning no dedicated full-time internal workplace investigators. As such, for many organizations, the individual conducting the workplace investigation is likely juggling other HR duties such as staff planning (e.g. recruitment and terminations), employee/labour relations matters (e.g. disciplines and grievances, collective bargaining), etc. With these “live” projects or day-to-day workloads, investigations into alleged misdeeds may be de-prioritized, causing this workplace investigation fundamental to suffer.

Leave No Stone Unturned (to a Balance of Probabilities)

If timeliness is one side of a coin, thoroughness is the other; one of the ingredients in the workplace investigation secret sauce is for the investigator to know how to strike an appropriate balance.

Regardless, however, of this need for equilibrium, one cannot understate the importance of collecting evidence – security access logs, e-mails, online chat histories, vacation reports, timecard records, cellphone bills, security camera footage, police reports, public records…. there may be several sources for documentary evidence that is corroborative and thus invaluable to a workplace investigation. The internal investigator may be at an advantage (versus an external investigator) due to familiarity with the systems and processes in place.

However, the internal investigator cannot rely upon what is historically known of the parties, for this is a common trap of bias. By way of example, one or more of the parties to the investigation may be in the process of being performance managed or have past performance issues, or perhaps the internal investigator had previously investigated one or both of the parties on separate matters; however, this does not mean that the complaint is not valid or should not be investigated, or that one should make assumptions about the direction the investigation may or should take.

When it comes to audio or video recording of interviews to improve the accuracy of analysis in the pursuit of thoroughness, this is something external investigators may do regularly. However, an internal workplace investigator often cannot make recordings due to internal policy or collective agreement stipulations. More recently available software can simultaneously record and transcribe an interview, however, even that has been prohibited by some collective agreements. Notwithstanding, taking accurate notes on the exact phrasing of responses by interviewees is vital, but can be exhausting when taken by hand and slow down the interview.

Loose Lips Sink Investigations

At the end of the day, even after repeatedly cautioning the parties/participants about the importance of confidentiality towards the integrity of the investigation, the likelihood is high that other employees know an investigation is happening as well as the identities of the parties. However, it is the investigator’s responsibility to ensure no leaks come from their side of the fence.

As an internal investigator, there may be an inclination to share progress reports with, and/or seek advice from, the HR supervisor. While potentially appropriate in the circumstances, the reality is the more people privy to the details of a workplace investigation, the more challenging it is to uphold the workplace investigation fundamental of confidentiality, notwithstanding everything “HR” is supposed to fall under the ‘cone of silence’. Further, given HR’s existing relationships as business consultants or advisors to other departmental people leaders, there may be pressure to provide updates or give certain information as “FYI” before the investigation concludes.

There is also the unintentional breach that can arise out of modern open-concept office layouts, keeping in mind that people (and not necessarily only HR staff) walk in and out of the office for many reasons and may overhear sensitive conversations or calls to request information. Technology has a role to play here as well; most organizations are set up on shared network drive/SharePoint-type systems, where restricted access to the investigation’s information to protect privacy (both during and post) has to be deliberately contemplated and implemented…but is it?

The investigator’s duty of confidentiality doesn’t end when the interviews are concluded. Common considerations include:

  • Once the report has been finalized, who are the results shared with, and to what level of detail?
  • If corrective measures are to be taken against the respondent, to what extent should the complainant be privy?
  • Do the parties owe a continued duty of confidentiality after the investigation is finalized?

My Fair Investigator

Most would agree that a workplace investigation must be conducted in a procedurally fair manner. But what does this look like in real life (outside of attempts to avoid bias), and why is it arguably the most important investigation fundamental?

Procedural fairness must be applied throughout the investigation process, but most of its part to play arises during the interview stage. Each party should be given notice of and introduction to the proceedings and have equal opportunity to be heard, to provide their evidence/witnesses, and to respond to information provided by others. From a trauma-informed perspective, all reasonable measures must be taken such that each party is made to feel safe, both physically and psychologically.

Whether intentionally or not, applying inconsistent processes or steps to carrying out investigations can be a faux pas on many levels when it comes to procedurally sound investigations. Inconsistencies, whether unintended or deliberate (potentially due to the nature of, or relationship with, the parties involved), can lead to claims of discrimination or unequal treatment. Just as the investigation may be a widely known secret, complaints about the investigation process being unfair will spread like wildfire; after all, doesn’t bad news tend to travel faster than good news?

The reputation and credibility of HR are always on the line with internal investigations, and how HR is viewed by the populace can affect future investigations, whether by way of under-reporting of complaints, or degree of participation if called as a participant. If enough balls are dropped and there is a failure to achieve a consistent perception of procedural fairness, it chips away at organizational trust (i.e. the faith that employees have in management and the organization to do the right thing). Employee engagement is then placed at risk, with knock-on effects to departmental and organizational performance. This is why it could be suggested that fairness be seen as the most important of the workplace investigation fundamentals. The same argument can be made for distributive justice; when there is a power differential between the complainant and respondent (e.g. if one is an executive), investigation steps may be (inappropriately) curtailed or sidestepped in order for that executive to save face, resulting in a different investigation outcome than would have otherwise occurred.

As a unique challenge to internal investigators, they may have to follow through on their own recommendations, whether disciplinary or otherwise, as part of their regular HR duties in support of that internal client group.  While not ideal from a desired impartiality perspective (particularly as the investigator may have to work with the parties or witnesses or their respective union representatives on future matters), this is the practical reality, particularly in smaller organizations.

Tips and Strategies

None of these measures are trade secrets. The key to success is to have a strong and consistent handle on the workplace investigation fundamentals.

  • Banish the bias. Make all efforts to recognize and avoid investigator or procedural bias, conscious or unconscious, actual or perceived.
    • The inherent or perceived bias colours who should (or should not) take on the investigation.
    • Eschew the organization’s pre-existing perception of the relationship between employer and employee (whether favourable or not).
    • Stick to the facts and do not take shortcuts (potentially based on misconceptions) at the cost of being thorough.
    • Ensure all parties have a fair and equal opportunity to be heard.
  • Be responsive. Have a set complaint intake procedure and meet with the parties/participants as close as possible to when the complaint arose.
    • Promptly conduct an initial assessment of the allegations (e.g. threshold test, and initial screening for potential investigator biases), and identification of potentially necessary input from other departments (e.g. occupational health).
    • Seize the opportunity for the parties/participants to access memory recall as best as possible.
    • Provide less time for potential tampering with witnesses (notwithstanding all parties/participants are formally advised about the importance of confidentiality and non-contact with other parties/participants in the investigation).
    • Demonstrate the organization’s commitment to addressing complaints in a timely manner.
  • Document, document, document. Details are critical to an investigation, and sometimes you don’t know which are the critical ones until later.
    • Have basics such as well-formatted, user-friendly, detailed complaint intake forms as well as organized systems for cataloguing documentary evidence submissions and cross-referencing them against allegations and incidents.
    • Standardized internal investigation forms can help ensure consistency across investigations and provide tension for timeliness by providing suggested deadlines for completion of each investigation stage. For example, through a series of fixed steps in the form (including mandatory managerial sign-off as considered appropriate), one could record the summary of complaints, identify whether any Human Rights Code violations are alleged, decide if early alternative dispute resolution is appropriate, detail the evidence collected, record key statements by the parties, summarize the various findings of fact, attest to the parties being individually notified of the results, etc. In more straightforward cases, this completed form could supplant a requirement for a full report.
    • For more complex investigations (provided internal resources are available), consider co-investigators to jointly conduct interviews – having two sets of notes may result in a more fulsome and accurate aggregate set of recorded details. Moreover, if the co-investigators are from different HR departments/groups (i.e. viewed as neutral relative to the parties involved), this may help deflect concerns of bias.
    • Retention of notes, evidence, and the report (if any) is also essential in the post-investigation world, not only for institutional memory reasons as staff move around/leave the organization, but also as documentation for disciplinary and possibly litigious purposes down the road. That said, investigation files are to be kept separate from personnel files (other than potentially a record of discipline).
  • Proactively protect privacy. Maintaining confidentiality is paramount to preserving people’s reputation and integrity, especially since rumours can potentially harm their ability to apply for internal job or training opportunities, succession planning, bonuses, etc.
    • If an employee involved in an investigation must be removed from the workplace for safety concerns, prepare the management team on how to respond neutrally to questions on the employee’s whereabouts.
    • Investigative calls should be conducted in an enclosed office whenever possible.
    • Take caution when discussing workload internally with coworkers or at team meetings – confidentiality still needs to be maintained irrespective of the false comfort of a team setting.
    • Computerized folders should have restricted access permissions on a need-to-know basis (principle of least privilege) and files password-protected. Paper files (if any) should be under lock and key with supervised access.
    • Consider having an anonymous complaint procedure and/or a whistleblower hotline; these would be considered ‘institutional’ investigations. While more susceptible to bad faith complaints, it is better that the organization provide complainants who have legitimate fears of retaliation with avenues of redress rather than risk the underreporting of incidents.
  • Use a trauma-informed approach, universally. At a high level, this means conducting the investigation with compassion, flexibility, and without judgment, and taking this approach consistently with all parties and witnesses to an investigation, in the spirit of procedural fairness.
    • Ensure the interviewee is aware of support options (e.g. union representation, programs available through employee benefits, etc.), particularly if they have witnessed a horrific or gruesome event.
    • Schedule interviews when convenient for the interviewee, and if in person, arrange them in well-lit, comfortable, unlocked yet private locations (i.e. not the typical departmental boardroom).
    • Phrase questions in a way that would not cause the interviewee to have a defensive reaction and give choice in the order of questions and/or how the party wants to proceed in giving their side of the story.

The Wrap Up

As you may have gathered by now, the top consideration when conducting internal investigations is the inherent bias (whether actual or perceived) which can creep into every facet of the process and potentially undermine the outcome.

By thoughtfully establishing structure around the investigative process, consistently applying best practices as to how investigations are conducted, and taking proactive steps to mitigate procedural or investigator bias, the organization can display a robust process that inspires perceptions of distributive and procedural justice, thus enhancing organizational trust and realizing its beneficial outcomes.

About the Author

Tova Bar-Dayan

Tova Bar-Dayan, MIR, CHRL, WFA, is an independent HR/LR consultant and workplace investigator with progressive roles in both public and private sectors, in unionized and non-unionized environments. She takes great pride in conducting workplace investigations, assessments and restorations that are thorough, impartial, trauma-informed and, above all else, put people first. During her time in corporate roles as well as with her consulting firm, Tova has investigated claims of harassment, sexual harassment, workplace bullying, racism/anti-black racism, theft, improper conduct, and more, including those which could have resulted in significant litigation and/or reputational risk. This experience is bolstered by her status as a licensed private investigator (Ontario).

 

[1] Government of Ontario. (n.d.). Part III.0.I: Workplace violence and workplace harassment: Guide to the Occupational Health and Safety Act. Retrieved from https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-iii0i-workplace-violence-and-workplace-harassment

[2] Government of Ontario. (n.d.-a). Code of practice to address workplace harassment. Retrieved from https://www.ontario.ca/page/code-practice-address-workplace-harassment

 

Download a PDF of the full article above: Internal Workplace Investigations: Considerations and Strategies

Download the Brochure

This field is for validation purposes and should be left unchanged.