Evidence Collection: Practical Tips for Workplace Investigations

 Practical Tips for Workplace InvestigationsOverview

Workplace investigations have become commonplace across Canada. Many Canadian jurisdictions require that employers implement workplace harassment and discrimination policies, which often include mandatory investigation provisions. Whether or not investigations are legally mandated, it is sound practice for an employer to conduct an investigation when there may be potential workplace harassment, human rights violations, breach of company policy, criminal activity, security breaches, legal action, or media scrutiny.

A fair and reasonable investigation can provide a defense for employers to assist in future litigation and/or human rights complaints.[1] Beyond legalities, investigations can also assist employers in identifying and resolving workplace issues, helping them to create a more productive and healthy working environment. For all of these reasons, workplace investigations provide an important function in today’s workplace. However, an investigation will only be useful if it is conducted in a fair and reasonable way.

Collecting the evidence is a fundamental step in conducting a fair investigation. Evidence may include witness statements, video surveillance, supporting documents (emails, letters, phone records, time sheets, text messages, photographs) and any other useful information regarding the relevant issues. While many witnesses may participate in good faith, people’s memories are not always reliable, and co-workers may share stories before an interview which could taint recollections. Further, not all witnesses will participate in good faith, resulting in dishonest and/or inaccurate witness statements on some occasions. Because of witness unreliability, workplace investigators should adequately instruct witnesses on confidentiality, while also making best efforts to collect and to preserve supporting documents when available. Following proper processes will assist investigators in ensuring that they have meet the good faith standard as required to conduct and complete workplace investigations. This article will highlight important considerations in collecting and preserving evidence when conducting a workplace investigation.

[1] See for instance: Morgan v. University of Waterloo, 2013 HRTO 1644 (CanLII) where the HRTO held that the university’s response to the complaint was “reasonable” and that the university had met its duty to investigate the circumstances; therefore, the award for damages came from the individual respondent only (and not the university). In this regard, a reasonable response and proper investigation can vitiate liability even in a circumstance where there is a finding that workplace harassment occurred.

Are You in a Communication Rut? Shift the Pattern, Get Different Results

Are You in a Communication Rut? Shift the Pattern, Get Different ResultsImagine that you are in a conversation when you suddenly realize that you have had this exact same disagreement with a co-worker, or a family member, many times before. In the moment, you can predict what you will say and do and what the other person will too. You feel compelled to act in a certain way, even when you know that what you will say or do next is unwise or unproductive. You cannot seem to help yourself. Or the other person! After the conversation has gone from bad to worse, you may find yourself attributing it to the other person’s incompetence, character flaws, or bad motive. You end up feeling frustrated and angry about how you and the other person did it again. Furthermore, you may be oblivious to how your behavior contributed to the undesirable behavior of the other person. You’ve just had an URP moment.

It can feel embarrassing to admit that despite our best intentions, our communications with others do not go the way we intended and that we could make better choices in the moment. Leaders and managers can learn to address some of these unwanted, repetitive, and intractable dynamics and shift the pattern to what they want instead.

3 Bad Habits that Impede Successful Conflict Resolution in the Workplace

3 Bad Habits that Impede Successful Conflict Resolution in the WorkplaceA habit can be defined as a “usual manner of behavior.” But what I know about conflict is that there is often nothing “usual” about it. What happens to those of us who support others in conflict is that we tend to reach for the same set of tools each time, although we often are trying to solve very different problems. Even with the best of intentions, these habits can result in frustration, shallow or even bad resolutions, and won’t meet the needs of the people in conflict. Here are some common habits when dealing with conflict and what can be done to overcome them.

Habit #1: Intervening With the Wrong Process

When problems, disputes, and conflicts arise, we habitually fall back on solutions that have worked in the past, or processes and policies with which we are comfortable. But using the same set of tools to help resolve all conflicts can’t take care of every job in our organizations any more than a hammer can fix a broken dishwasher.

Here are some examples and potential pitfalls:

  1. Mediation
    Mediation goes in waves of being the popular go-to conflict resolution strategy and a box to be checked. Mediation is an outstanding conflict resolution tool, but it isn’t appropriate to put some parties through this process. If used in the wrong scenario, one or both parties can walk out harmed by the session and its outcomes. This can make real resolution to the conflict seem or be out of reach.
  1. Open-door Policies
    Open-door policies emerged when managers were attempting to create more transparent and conversational workplaces in which conflict was addressed at the most local level and became the de facto system for resolving any problems. Unfortunately, this policy works only for those bold enough to walk through that open door. Thus, many problems are left unknown and, therefore, unresolved.
  1. Arbitration
    Arbitration has become a boiler-plate feature of many contracts, employment and otherwise. It has its place, but often doesn’t meet some of the underlying needs of parties to have a stronger voice in the resolution of the conflict.
  1. Evaluations, Investigations and Fact-finding Processes
    Some organizations use evaluations/investigations/fact-finding processes as a means to resolve conflict. While good answers may come out of these types of processes, additional processes may need to be undertaken in order to build skills, address systemic conflict, and deal with underlying issues between individuals in the organization.

Interventions in conflict can do damage in some cases, when done inappropriately or ineffectively. Often, the best of intentions can lead to anything but the best outcomes.

Bernard Mayer, a prominent conflict writer and practitioner, writes, “the conflict resolution field has too often failed to address conflict in a profound or powerful way” and “this doesn’t mean abandoning old rules; rather, it means building on them and dramatically expanding what we offer to people in conflict.” (Mayer, Beyond Neutrality, 3). There are so many roles that great leaders, managers, human resource professionals, union representatives, etc. can play when problems arise between people.

I have been a part of conflicts where there was one difficult question that really needed to be asked. When the question was finally asked, it served as an intervention that led to resolution and even transformation; this can even occur after failed mediation sessions. Having a well-developed and broad spectrum of strategies and tools is helpful in addressing conflict in a tailored, appropriate way.

Habit #2: Trusting the Organization’s Selection of Conflict Process

Many people are unfamiliar with conflict processes, formal or informal. This is the case even when processes are agreed-upon terms of a contract or are part of an organization’s regular system for handling conflict. It can become a habit to use the standard conflict resolution process rather than spending the time to assess and ask the difficult questions to know what intervention they want and need.

Early on in my conflict career, a mentor once told me how she would often get calls asking for a mediator. They would explain the problem to her (people who aren’t versed in conflict resolution rarely portray their problems or issues as “conflicts”) and she would immediately start to ask them questions to better understand the story being told. The responses sometimes led her to the use of mediation. Sometimes though they led to her implementing some training for the organization, combined with a localized mediation for parties that might need and want it, and the establishment of some new processes to support the organization in the management of future conflict. Other times, the responses to her questions led her down a totally different path. No prescription was exactly the same, even if there were common strains among these organizational conflicts. Each intake conversation for a conflict led to a unique intervention or series of interventions to help the party or parties move forward.

Fostering good outcomes takes deliberative work that treats each conflict as something that can be understood better through best practices and a thorough attempt to assess the unique conflict at hand. Diving into well-developed tools, like the Wheel of Conflict (Bernard Mayer) and features of basic assessment outlined by Susskind and Jennifer Thomas-Larmer, partnered with curiosity and good communication skills, can help us to better understand all of the dynamics of a particular conflict. Then we can identify the best intervention to positively affect that particular conflict or problem and the people involved.

A harmed party may demand a certain process for handling a dispute. A friend or colleague may have gone that route before or they might want to use a process that was mentioned at a recent union meeting. Slowing down and doing an assessment before jumping into a process, even ones that the parties might be adamant that they need, is the first and most important step before jumping into an intervention.

Habit #3: Implementing a Process the Parties Do Not Understand

Sometimes conflict processes within organizations are so understood by those implementing them that they often leave the conflict parties in the dust. Meaning, the people in conflict feel like they are having processes done “to” them instead of “with” them. Time is limited (e.g. we only have two hours for this mediation session) and so we jump into the thick of it. As a result, people can feel uninformed, unsafe, and unsure about the process and consequently, they may not trust the outcome. This doesn’t mean that our processes have to be easy for people or not include consequences when legitimate wrongdoing has occurred. It just means that educating them and checking in with them before, during, and after processes is part of implementing good conflict interventions. This is how we can do processes “with” people.

I liken this to a doctor’s visit. It is much better to know what a doctor is doing to us when poking and prodding so that we understand the follow-up visits, the lab orders, and the after-care instructions. When people are in conflict, whether they present themselves as the victims or offenders, they are uncertain and maybe even a bit afraid. Part of supporting people through conflict is ensuring that they understand the process, and that we are modifying our processes to better suit their needs. Imagine asking someone working through coaching or a mediation, “How is this working for you?” and “How can I make this work better for you?”

In addition to informing those in conflict about the processes being undertaken, being nimble and adapting our processes to work for the parties can be essential in working through conflicts.

Breaking Bad Habits

We all know that bad habits are easy to form and hard to correct. It takes time and practice to develop the skills and the habits that lead to good results. To get started:

  • Slow down. Ask questions before beginning an intervention.
  • Utilize well-researched tools to analyze and assess the conflict to determine appropriate intervention(s).
  • Communicate clearly and “check in” often with the parties in conflict.
  • Get training to expand your conflict resolution toolset.

By taking these steps, you can maximize opportunities to resolve conflict and reach better outcomes, while also promoting more effective engagement in conflict and within teams (or with coworkers) on a daily basis.

 

About the Author

Joan Sabott
Joan is a facilitator for the Queen’s IRC Strategies for Workplace Conflicts program.
Joan Sabott is a practitioner, consultant, trainer, teacher, and coach in conflict engagement and resolution. Currently, she is an adjunct faculty at Creighton University in Omaha, NE, USA, on leadership and conflict. Joan is an Affiliated Practitioner and former Senior Program Manager with The Langdon Group. She has consulted on various projects in the organizational sector for businesses and public agencies, and on environmental projects in the substantive areas of water, transportation, and land use and planning. From one day (or hour) to the next, she is mediating, facilitating, coaching, advocating and providing impromptu training sessions on conflict-related topics. Joan holds a B.S.B.A. in History, a Certificate in Secondary Education, and a Masters in Negotiation and Dispute Resolution, all from Creighton University.

 

 

References

Mayer, B. S. (2004). Beyond neutrality: Confronting the crisis in conflict resolution. San Francisco, CA: Jossey-Bass.

Mayer, B. S. (2012). The Dynamics of Conflict: A Guide to Engagement and Intervention. San Francisco, CA: Jossey-Bass.

Susskind, L., McKearnan, S., & Thomas-Larmer, J. (1999). The consensus building handbook: A comprehensive guide to reaching agreement. London: Sage Publications.

5 Insights into Conducting Effective Fact-Finding Investigations

5 Insights into Conducting Effective Fact-Finding Investigations Fact-finding is an essential skill set for anybody who is in an HR, labour relations or employee relations role. If you stay in this role, at some point you will end up doing investigations, and having this skill set is going to make you much more efficient as a practitioner.

Jerry Christensen, who recently retired from the City of Calgary, managed and coordinated the City’s respectful workplace program and dealt with all of their human rights issues. With previous experience working in the criminal justice system and with the Alberta Human Rights Commission, Jerry has worked in several regulatory environments where someone had to be held accountable. In this interview, Jerry shares his thoughts about the value of fact-finding and investigation training for HR and LR practitioners, as well as the five most important things he’s learned about conducting effective fact-finding investigations.

“If you’ve not done any workplace investigations, never had any training to do so, and then find yourself being thrust into that role, it can be very intimidating. The word ‘investigation’ is going to be flashing in front of your face in letters that are 10 feet high and blazing red. You may find yourself feeling anxious and nervous about your role in this process.” Jerry points out that this is why it’s important to have training in fact-finding. “Usually, when people are intimidated about the process, they’re going to stumble through it and they may not do it very well.”

As an investigator at the City of Calgary, Jerry took on a neutral role, where he didn’t advocate for one party or the other. This was very important to his role, because if HR or LR are perceived to be favouring one side, the parties involved may feel that it’s not a fair investigation.

Improving your skills in fact-finding is another essential tool in your toolkit, Jerry says. “These skills are your bread and butter as an HR or LR practitioner. I think taking the Queen’s IRC Mastering Fact-Finding and Investigation course increases your competency as a professional.”

“Fact-finding is really all about talking to people. I really believe this kind of training is going to help improve their communications skills and their ability to engage with all types of people more effectively. It doesn’t matter what job you do or what kind of business you’re in. I believe that this training will be of benefit to you.”

Whether you’re just starting out, or whether you’ve been through some fact-finding investigations before, Jerry shares the five most important things he’s learned about conducting effective fact-finding investigations.

1. Good Investigations Are Thorough And Fair

The two main criteria for a good investigation are thoroughness and fairness.

It’s important to respond effectively to complaints in the early stages because issues can escalate quickly, to a point where the workplace can get polarized and toxic very quickly. You have camps of ‘he said’ and ‘she said’, no one trusts anybody, and employees are upset with what they perceive as an unfair situation because they feel nothing is being done to investigate the complaint. Productivity goes out the window and work doesn’t get done. An employer’s reputation can be negatively impacted very quickly because these perceptions become topics on social media or other outlets – nobody can keep it internalized anymore.

There are many cases where an employer has been accused of not doing a thorough and fair investigation. Those employers then have to deal with negative press, and possibly be involved in costly litigation.

Recently there have been media reports of an employee who launched a civil action, alleging that she brought forward what sounds like sexual assault allegations against another employee, and that the company didn’t deal with it properly. The employer will now have to demonstrate what they did and how they did it in order to defend themselves against those allegations in civil court. If they can’t prove that they investigated this in a fair and thorough way, and if they can’t demonstrate it with tangible facts or documentation, then their liability and reputation could be at risk.

2. Not All Investigations Are The Same

The word ‘investigation’ has a very negative value attached to it. For a lot of people, when they hear that word, they have their own perceptions of what investigations are – mainly from all the crime shows that we see on television. But crime shows don’t show the real way that workplace investigations should be done.

In some situations when a complaint is on the lower end of severity, there may be an opportunity to try to informally resolve the issue. HR and front line managers or supervisors should be able to (and prepared to) give coaching and/or advice to both parties so that they can resolve their conflict themselves. If they can do this, then nine times out of 10, the resolution will stick, and people will be able to work together much more effectively.

When the situation is dealing with more severe allegations, this is where the process tends to get more formalized. Complaints are written out and the allegations are very specific in terms of who, what, when, and where. People will have to be interviewed about their knowledge of the specific allegations. All of that information will have to be evaluated to determine if there has or has not been, a violation of some workplace rule or policy. If necessary, discipline may have to be imposed. In most people’s perception of what a workplace investigation entails, this type of process is what it would look like.

This is where the training that one can obtain through a fact-finding course, such as the one offered by Queen’s IRC, is going to help. It helps you learn to maintain that position of objectivity and fairness, and teaches you how to complete a thorough investigation and write proper reports. If you can demonstrate to the parties involved that your process is as thorough and fair as it can be, then they may be prepared to accept the outcome.

3. Patience Is The Key to Good Interviews

Everybody that I interview – everybody, it doesn’t matter who you are – they’re all nervous. On a scale of nervousness, with one being the least, and 10 being the most, usually most people are five and up when I come to interview them because, “Oh no …, now I’m involved in an investigation. Somebody might lose their job. I don’t want to get anybody in trouble.” Getting someone you are interviewing to a point where they feel comfortable to simply begin talking and having a conversation, that’s usually the biggest hurdle to overcome.

In the criminal justice system, people are interrogated, but in the workplace that approach tends not to get anything of value from the person you are trying to interview. You have to have a discussion with them in a way that’s not going to intimidate or make them feel threatened. Usually that’s the biggest hurdle right off the bat and sometimes this takes a while to achieve. Being patient and asking questions in a conversational tone will tend to get you the information you need.

4. People Present The Truth As They Know It

Most people want to tell you the truth as they know it. And by that I mean that people might tell you their version of what happened, and while they’re not lying, it’s very different from what somebody else saw. It’s how they perceive it and how they interpret the situation. They want to tell you that. You’ve got to be patient with them to give them the opportunity to get that out. Sometimes in an investigation, we want it done yesterday. But I’ve always taken the approach that I’m going to do it as quickly as possible, but it’s going to be thorough, and if thorough means taking an extra few days to get the information complete, then that’s what’s going to happen.

The most challenging types of investigations are where the allegations involve a situation that happened in the distant past. When allegations are several months or a year or older, people’s memories get very sketchy. Even though some of us like to think that we have really good memories, when it comes to specific details, we don’t. We tend to have recollections that are influenced with lots of other things that happened in our lives during the time period that is being investigated. Dealing with allegations that are old makes it very difficult to determine the validity of those allegations, and it may seem like the person being interviewed is not being forthcoming. In my experience most people want to be forthcoming but their memories don’t always cooperate.

5. Stay Neutral And Investigate Every Complaint

As an HR or LR practitioner, it’s important to investigate all complaints in the workplace, either formally or informally. The Jian Ghomeshi case really highlights this point. The workplace allegations that involved Ghomeshi were years and years in the making. Some people in the workplace may have minimized it as “Oh well, that’s just him,” or “We don’t believe that.” Then the proverbial volcano erupted. Obviously people who should have looked into those allegations didn’t, and if you have any training in fact-finding, you will know that your first obligation in situations like that is not to say, “Oh well, that’s just him.”

If your organization has HR or LR practitioners who are trained in fact-finding and investigations, they are going to be able to handle most workplace complaints. But there may be instances when you need to bring in an external investigator. If people have the perception that HR is too close to the situation, or isn’t able to handle the complaints, you should consider bringing in an external person that is going to have the perception of objectivity and the necessary skills to do a thorough and fair investigation. That’s crucial here.

As a good employer, you have a duty to investigate any complaints that are made. It doesn’t mean you have to do a great big huge investigation and interview hundreds of people, but you need to check into those allegations to determine what next steps need to be taken. Maybe you will find that this is a matter that can be resolved between two employees, or maybe a more thorough investigation needs to be launched, but you can’t just ignore the allegations.

Breaking Bad News About Organizational Change

Breaking Bad News about Organizational ChangeGetting the news out about an upcoming restructuring, merger or acquisition, layoff, or other major organizational change can be a challenge. No one wants to experience having their name ‘pop up’ in a new organization chart that is widely distributed online before receiving any direct personal communication from their boss. Imagine if you showed up at the office and discovered that the reason why you cannot access your email is not because of a glitch with the IT department but because you have been dismissed, and no one had the courage to tell you. Organizations and managers have a responsibility to share such news in direct and supportive ways that enable employees to understand what is changing and how they will be affected.

Why is it so hard to deliver bad news to others? Perhaps you like to be the ‘nice guy’ and find it difficult to say no, or disappoint others. You may fear that you will become the target of anger and retaliation. Being the bearer of bad news can be emotionally upsetting, challenge our self-image, and disrupt relationships. Sometimes we face situations where our own beliefs and feelings, values and principles are in conflict. Caught in the middle, we might feel a bit ambivalent, or defensive, about the decisions made by the executive team, and yet we are the ones asked to deliver the message to employees.

Bad news is defined as information that has an adverse effect on how a person views the future, and impacts how people think, feel, and behave (Bies, 2012; Buckman, 2005). How we deliver bad news affects how people interpret information, and how they cope. It not only impacts the relationship between managers and employees, but may negatively impact the company’s reputation.

Some of us have not had much experience delivering bad news. Many of us have received little or no training on how to deliver bad news to our employees. If managers are typically inexperienced and unprepared to deliver bad news, what might we learn from other professionals like doctors, nurses, and law enforcement officials that might help us with this difficult task? Using a structured approach can help you deliver bad news to individual employees in a way that will result in less anger and blame, provide a greater sense of fairness, engender greater respect for you as a manager, and help people deal with change (Bies, 2012). Consider a process with three stages: prepare, deliver, and follow-up that can help you be successful in handling these situations.

Prepare

  1. Practice. Rehearsing before delivering such news can help you appear more credible to your audience. Rehearsal can take the form of mental rehearsal, or actual practice. Try practicing at home in front of the mirror to gauge your own verbal and nonverbal behavior. According to social psychologist Amy Cuddy, our body language affects how others see us, and when we are being inauthentic, our nonverbal and verbal cues are misaligned.
  2. Manage the setting. Arrange to have the discussion in a quiet and private location. Minimize interruptions. Turn off the cellphone, computer, telephone. Consider meeting with the employee in his or her office, rather than calling them into your office. Take your time.
  3. Manage your own reactions. Delivering bad news can be emotionally upsetting for managers who may feel guilty, conflicted, and focused on avoiding the situation. You need to be aware of, and manage, your own emotional reactions before sitting down with an employee. How can you keep calm, professional, and genuine?

Deliver the Message, Build the Relationship

Communication takes place on two levels: the message content and the relationship. Breaking bad news is an opportunity for you to communicate the facts of the situation and provide the rationale for decisions that have been made. It is also an important opportunity for you to pay attention to the relationship. How you maintain the respect and dignity of the employee in the conversation and convey trust may have a significant impact on your credibility, employee morale and motivation, and your relationship with employees that may continue into the future.

  1. Provide some advance warning. Just like good drivers who signal their intentions to other drivers as they prepare to make a left turn, managers need to prepare people to hear bad news. Providing advance warning of bad news provides some predictability that can help offset the shock of bad news. You can start the conversation by saying, “I have some difficult news I need to share with you.” Easing into the topic gives people a chance to prepare themselves psychologically for what comes next.
  2. Be sincere. Face-to-face delivery of bad news matters. When bad news is delivered verbally, in person, or over the phone, people will perceive you as more sincere. Face-to-face communication encourages more immediate feedback that can help you clarify the message, reduce misunderstanding, and convey trust.
  3. Deliver with clarity. Give information in small chunks. Be clear. Repeat the message. You don’t want the information you are attempting to convey to be misinterpreted. Beware of corporate ‘doublespeak’ that may confuse the message in an attempt to make the situation seem less terrible. Saying one thing, while meaning another is a sure way to undermine your credibility. Test for understanding. Summarize the information you have presented.
  4. Tell the truth. Employees expect managers to tell the truth, and truth is essential to building trust (Bies, 2012). Lying creates intense feelings of distrust and outrage. Be direct. Give people the facts. Don’t sugarcoat the message. Help people understand the situation. Identify the mitigating circumstances. Explain the rationale for decisions that have been made.
  5. Provide an adequate account. People expect a clear, valid and reasonable explanation or justification for managerial decisions and actions. Doing this well can make it less likely that employees will blame you as the manager. Inadequate accounts, on the other hand, can be demotivating, resulting in less cooperation on the part of employees, lowered productivity, and potentially increasing the risk of retaliation.
  6. Explore, empathize, validate. Encourage employees to vent. Remember, emotional reactions are normal. Validate the person’s experience in a genuine manner. You could say, “This is not what you wanted to hear” and “I can understand how you feel that way”. Acknowledging feelings helps people feel validated. Avoid getting into a debate about the merits of a decision that has already been made. Listen. Invite feedback.

Follow Up

Communicating bad news may be the first in a series of events that need to happen to ensure a smooth transition to a new reality. Your role as a manager is to continue to provide the support and direction needed to help people manage this transition. In the shock of the moment, people may not process or remember all of the details. Follow up with employees by inviting feedback and questions, being available, and focusing on next steps.

  1.  Invite questions. Invite feedback. Ask, what questions do you have? Gently probe to explore feelings if people have not expressed them.
  2. Focus on the next steps. What can you do to help employees to focus on the future? How do you provide a sense of hope for the future? What is going to happen, when, and how? Adapting to stressful events is somewhat easier if they are predictable or controllable.
  3. Be available. Invite employees to come back to you another time with more questions and concerns.

Managers play an important role in setting the stage around the need for change in organizational life. Not all change is life-altering. Taking adequate time to plan and prepare before delivering bad news can increase your confidence and your skill in having these conversations. Paying attention to the content and delivery of the message helps employees understand the rationale for change, maintains trust, and reduces anger and blame. If you act with integrity, people may not like the message, but they might respect the messenger. And that might mean they are more willing to work with you to make the changes that are necessary to create new possibilities for the future.

 

About the Author

Kate SikerbolKate Sikerbol, PhD (Candidate) is a facilitator with Queens IRC and an organizational consultant and coach with extensive experience in business, healthcare, government and higher education. Kate has designed and delivered change management programs, leadership development programs, facilitated team building using strengths-based and appreciative approaches, and provided leadership assessment and coaching to managers and executives. She is passionate about creating capability for change in teams, organizations, and communities.

Kate is the lead facilitator for Queen’s IRC Change Management program.

 

Selected References

Bies, R. J. (2012). The delivery of bad news in organizations: A framework for analysis. Journal of Management, Vol 26, 1-18.

Buckman, R. (2005). Breaking bad news: The S-P-I-K-E-S strategy. Community Oncology, 2, 138-142.

Cuddy, A. (2012). Amy Cuddy’s TED talk. Retrieved April 8, 2016, from https://www.ted.com/speakers/amy_cuddy.

Gallo, A. (2015). How to deliver bad news to your employees. Harvard Business Review, March 30, 2015.

The Golden Rules of Fact-Finding: Six Steps to Developing a Fact-Finding Plan

As labour relations professionals, we are required to engage in fact-finding on a regular basis. Good fact-finding ensures that the information upon which we form our conclusions and recommendations is credible, and that our advice is evidence-based.

When planned and executed properly, fact-finding provides a solid foundation for conducting analyses, forming conclusions, generating options and formulating sound recommendations. Fact-finding may involve researching documents or existing records and data, holding focus groups, interviewing witnesses, or using written surveys and questionnaires. The techniques employed will depend on the project or issue under consideration. What is constant across all fact-finding missions is the need for a plan to guide and document your efforts.

Developing a good fact-finding plan starts with figuring out what you need to know – what information do you have to have in order to form an evidence-based opinion. The precursors to good fact-finding include scoping the issue to determine what it is you need to answer, understanding the context within which the issue has arisen, and appreciating the “political” landscape (organizational and personal relationships often play a significant role in shaping a witness’ view of a matter) – all of these things can influence the approach you take to any given fact-finding endeavour.

I like to follow what I call my Golden Rules of Fact-Finding:

  1. Go to the source. The source may be a person or a record, and while not always readily accessible, you should strive to obtain the best evidence available. Search existing policies and procedures and begin to understand how they affect the issue. Identify unwritten rules or practices that form the context of the issue. Establish a recording protocol to document everything that you have gathered and always obtain original copies of documents and records.
  2. Stay objective. Do not become unduly swayed by the people involved — focus on facts, not on opinions or personalities.
  3. Be persistent.  If you are not getting the information that you need, do not get derailed. Determine the root cause of why you are not getting the information. For example, have your sources signed a confidentiality agreement which precludes them from answering discussing the matter? When speaking with sources, if you are not getting the information you need, or they are deflecting your questions, probe them and get to the facts.
  4. Do not get paralyzed. The art of fact-finding is separating the information that is required from that which is not. Go where the facts take you, however, stay within the mandate of what it is you are investigating. Compartmentalize the facts as you gather them and delve deeper only where necessary. This will help you stay on track and avoid becoming overwhelmed.
  5. Do not assume. Confirm, confirm, confirm. All of the facts and information that you have gathered must be accurate. This will help you build credibility and support evidence–based decision-making.
  6. Have a plan and follow it. Think strategically and develop a plan. When you determine what you need to establish and whom you need to talk to before you start, the task of uncovering the facts will progress more smoothly.  As you begin to obtain facts, you may branch into new areas of enquiry, be required to clarify previous statements, connect with new sources and review additional documents. Just remember that your plan is a living document and you will need to revisit and review it regularly.

In order to succeed as a trusted, strategic advisor to business executives, today’s labour relations professional requires the ability to separate fact from fiction, and formulate options and recommendations based on evidence. Developing fact-finding skills is critical to ensure success.

 

About the Author

As a career civil servant, Lori Aselstine has over 33 years of experience in the fields of program management, human resources and labour relations. Lori has worked in all regions of Ontario, in small, medium and large operational ministries, as well as in central agency ministries. Lori has extensive experience conducting complex investigations, developing corporate grievance management/resolution strategies and processes, developing negotiation and bargaining mandates, and managing in a complex union-management environment. As a seasoned LR professional who has conducted hundreds of enquiries, investigations, mediations, arbitrations and negotiations, Lori has established a reputation as a skilled relationship-builder and problem-solver.

Getting Along With the Union

How can human resources professionals bargain and build meaningful relationships with the union during tough economic times?

In her recent presentation at Queen’s IRC’s Labour Relations Foundations program, Ontario Nurses’ Association President Linda Haslam-Stroud provided sound advice for signing off on successful collective agreements. In the following excerpts from her talk, Linda shares her top 10 tips.

1. Foster equality: remember, union and management are the team

The employer’s objective is to hold the line or to get concessions, to get as much flexibility as possible so they can operate their organization.

The union is trying to improve wages, benefits and working conditions for members. That’s their job, that’s what they’re elected to do. They are the elected voice, the bargaining agents.

So both sides are coming into this with different goals to achieve. At the outset, HR and labour relations need to appreciate where the union is coming from, where there is room for movement, and where there isn’t.

So talk to your union; HR and labour relations and the union are the team. If you can’t build relationships, you won’t be successful as a union rep or an HR leader.

Courses like IRC’s, for example, foster transparency and open dialogue between management and union representatives. Attendees leave with a tool-kit of practical ideas on fulfilling their accountabilities as HR and union representatives.

2. Find common interests and collaborate

At the ONA, we’ve had success with interest-based bargaining. IBB can be anything from a formal process where you pay someone to come in and facilitate union-management cooperation on common problems, to a more informal approach to talk about issues.

It’s often a good alternative to approaches where employers and the union sit on opposite sides of a table passing documents back and forth.

IBB is helpful for identifying common issues. For example, the ONA and employers both want to provide quality patient care; and we both want to be fiscally responsible with tax dollars.

3. Drill down toward tough issues

First come to consensus on high-level issues, and then break down into more specific issues, such as scheduling. Wages, benefits and anything financial we leave until the end of the road. You want to build up a relationship when you’re bargaining, so try to get the non-financials off the table first.

4. Sign off as you go along to build momentum

We’ve been very successful in signing off on clauses in the nonstrike sector and in the strike sector too with CCAC case managers, public health nurses and nurses in industry. We find that this builds momentum, trust and credibility. So if you have four things you’ve agreed on and then break down on a really difficult issue, that relationship that’s been built will help you successfully negotiate further.

5. Talk – don’t push papers

Even if you are in a traditional bargaining setting, instead of just passing papers back and forth, talk about the issue. If the union’s come forward to you with some bizarre proposal, don’t walk out of the room without saying, “So union, tell me why do you want this; what’s the issue here?” It might be something you can give to union members and at the same time support what you want. But you’ll never know unless you engage.

If you want to negotiate well, start talking, ask questions. Say, “We have a problem with this, here’s how we think we can solve it, have you got any suggestions, union?” You might be able to get where you need to be without aggressive concessionary language that the unions could never take back to their members.

6. Avoid package deals

Package bargaining drives me crazy – at ONA we just ignore it. You know, “We’ll give you A if you give us the employers’ BCDEF and G.”

Passing packages back and forth drives me crazy. Basically you’ve told the union you’re willing to give on that point. And we’re saying, “Okay, that’s done, so let’s get down to the other ones we need to deal with.”

I’m not a big proponent of these packages.

7. Come prepared to negotiate

This scenario happens frequently: we as the union have taken five months to get to the table, arranged with everyone’s busy schedules to be there, including nurses pulled off very busy units that are often short-staffed, and we sit down to bargain. Then the employer says, “Ok, we’ll take a look at it, and our next day for bargaining is four weeks from now.” The employer group hasn’t even met to decide what its proposals are!

Have a good idea of what the language in the current collective agreement says when you come to bargain, and what your priorities are, whether you are management or union, and facts about why you want what you want. You have to show reasons so when we go to arbitration we can share case facts. Be prepared to tell this to the other side of the table: “We need this because of X.”

8. Hone priorities and proposals continually

At ONA we bargain at two levels: centrally and provincially. So how do we make sure we are very well positioned to go to bargaining?

We do a bargaining questionnaire of our 55,000 members. We have an external firm mail it out and members mail it back. We typically get high response rates of 35% to 40%.

The information is broken down into sectors: we know first priority, second priority, and down the list. We know what age group wants what percentage of a wage increase.

We have all that information, so when we come to the table, its not just a wish-list from members from the past two years since we signed the last collective agreement. It’s solid quantitative and qualitative information.

9. Signing the collective agreement means your job has just begun

Whether you are a union rep or in HR, once the agreement is signed, the question becomes, “So how will we implement this?”

Employers sometimes send out copies of the collective agreement to all managers, or have a short meeting with HR to orient them to the new language.

This isn’t enough: it’s about the ongoing discussion with managers on how the collective agreement is applied. And on the union side, reps have a responsibility too: to tell employees what their rights are, and aren’t.

10. Hold joint meetings about implementing agreements

One of the best practices I’ve seen in 30 years of negotiating was at St. Joseph’s in Hamilton. We got together after the collective agreement was signed and talked about how to implement it. We said, “Let’s sit, union and management together, and talk about the amendments and how that’s going to be worked out.”

The ONA has sometimes had joint meetings that include management and members to say, “This is the new collective agreement, a joint presentation of our joint collective agreement, a collective agreement that is ours and not theirs.” This goes a long way toward ensuring labour peace.”

The Health and Safety Revolution

Legal and societal trends are transforming our organizations, says Vic Pakalnis, Amethyst Fellow at Queen’s University School of Policy Studies. In this Q&A, Vic, a senior leader with 30 years’ experience in the Ontario Public Service, says HR professionals have a key role in facing these challenges..

What are the top trends around safe and healthy workplaces?

There’s a huge sea change underway, akin to the revolution around driving under the influence of alcohol. Our culture has changed radically; people do not drink and drive anymore. In Occupational Health and Safety, it is no longer acceptable to injure workers. Accidents are not accidents. Every injury, every fatality, is preventable.

That is revolutionary thinking: in the past, lost-time injuries, fatalities even, were considered ‘the price of doing business.’ This is no longer the case: it’s considered outrageous, preventable, and organizations and supervisors are being held to account.

How is accountability for employee health and safety changing?

If you look at the legal framework, governments are tightening the requirements for people in direct responsibility roles. For example, the federal government passed Bill C-45, amendments to the Criminal Code. The first prosecution under that occurred earlier this year in Quebec, and it’s going to spread. Employers have to take preventative measures or they will be held accountable if a fatality or incident happens in the workplace.

In Ontario, the Ministry of Labour hired 200 new inspectors, who have been in the field since last year. The Ministry is targeting high-risk workplaces. The accident rates in the province right now are 1.8 per hundred workers. If a firm has an accident rate that is above that, they’re above the provincial average, and have to bring it down. There are certain sectors, such as mining, that are considerably lower than the provincial average. Underground mining is at .07 per hundred workers.

So what’s considered ‘normal’ has completely changed?

It’s revolutionary – and people don’t realize what’s happened, how much expectations have changed. In mining 30 years ago when I started at the Ministry of Labour, the accident rates were about 8.3 per hundred workers. And now they’re at .07 per hundred workers.

Mining got its act together. It put technology to work, has mandatory training for all – not only workers, but supervisors too. If mining could get it together, and created a safety culture that demands that kind of performance, it puts everyone else under the gun to improve.

HR and IR professionals need to search out best practices and make sure that they’re applied to their sector and their organizations.

What other health and safety trends do leaders need to know about?

There’s another huge revolution around the new Healthy Workplaces movement.

Healthy Workplaces has three aspects. The first is conventional Occupational Health and Safety, covered by the Occupational Health and Safety Act and the Workers Safety Insurance Act.

Healthy Habits is aspect two. These things aren’t legislated but affect a workplace, and include smoking, obesity, fitness, drug use – that sort of thing. Partially they are a personal responsibility, but employers can encourage healthy behaviours to create a healthy workplace – one that will attract the best and brightest. It’s a retention issue as well, because in the current situation, people walk very quickly, they vote with their feet.

The third aspect is the safety culture. Some refer to it as the ‘psycho-social’ side of this. It’s about how you treat people who are not coping well, who are stressed. I heard a quote from a Minister of Labour some years ago that said 3,000 nurses are off on stress leave every day in Canada. Think of the waste in terms of productivity. Organizations have to create atmospheres and create expectations that people don’t work 24/7, burning themselves out, causing all sorts of unsustainable family-work issues.

We need to change workplace culture; we need to support people. Twenty-five percent of our workers have mental health issues. That’s diagnosed mental health issues. There are many others that are undiagnosed.

That’s an alarmingly high number.

Yes, and most employers don’t realize it, don’t accept it, and don’t do anything about it. If you don’t create a supportive environment, if you don’t accommodate people, you’ll lose productivity. You’ll lose some of the brightest and the best because they just won’t be able to cope – they’ll be off on long-term disability and be a drain. But if you do support them, if you do deal with reality and deal with the issue, they’ll be exceptional workers that just need some help once in a while.

So, the revolution is coming in terms of the legal side of things; and in terms of society – the cultural expectations. Young workers of today, for example, won’t put up with what used to be considered ‘normal’. They have better knowledge: it’s mandatory in Ontario to have Occupational Health and Safety in high schools. Expectations of the workplace have changed.

For HR and IR leaders, what challenges flow out of new laws and societal attitudes?

Healthy Workplaces and Occupational Health and Safety should be every HR/IR professional’s radar screen. The website of the Canadian Centre for Occupational Health and Safety (http://www.ccohs.ca), for example, is one great resource. Another is sponsored by the Workplace Safety and Insurance Board sponsored (prevent-it.ca).

The big challenges are attraction and retention. If your accident rates are high, word gets out – in the United States they actually post this information on the web. If you’re not a good employer, if you don’t provide healthy workplace practices, you won’t attract and retain the brightest and the best. So it’s a competitive problem in the end.

The second thing is the business case. One injury costs on average $75,000. One injury! That includes compensation costs, retraining costs for people that take on the injured worker’s job – all of the various costs involved. That’s for injury and illness. But for lung cancer, it’s around $200,000.

You can’t sustain injuries and illnesses and stay in business. You have to manage them and create a preventative environment. And most provinces now have fines in the order of $500,000 for each charge against you, and a fatality might involve two or three charges.

Human resource professionals also need to recognize that if you don’t have a healthy workplace, you don’t have engaged employees. If you don’t have engaged employees, you don’t have quality services. If you don’t have quality services, you start losing customers. There are huge downsides to ignoring these new trends.

Healthy Workplaces involves cultural change in the workplace, which is never easy. What is the role of HR here?

HR is usually the conscience of a firm. The department can provide Operations people with the necessary tools to change culture. I think Operations has to internalize it – you can’t do that from the outside – but HR professionals can gather up information, package it, give it to the Operations people, make it real for their particular industry. This is important because a healthy workplace won’t look the same for different organizations.

HR can also help with policies related to accommodating people with disabilities; with mental health issues; with family issues; policies that recognize that we all have lives outside of the workplace. Those HR policies help create a healthy workplaces, and Occupational Health and Safety is part of that framework.

Society’s new expectation that no fatalities in the workplace are acceptable is going to mean there’ll be far more pressure on organizations – and their leaders – to support healthy and safe workplaces in the coming years.

Leveraging Your Learning Power

We spoke to an educational dream-team about best practices in facilitating learning – and harnessing new knowledge to help overcome an organization’s most pressing challenges. Sharing their views are Allyson Thomson of the Ontario Ministry of Finance; her executive sponsor Assistant Deputy Minister Marion Crane; and Queen’s IRC Facilitator Brenda Barker Scott.

Allyson Thompson, Senior Divisional Project Manager, Transition Project Office, Ontario Ministry of Finance in Oshawa.(Queen’s IRC Certificate in Organization Development; candidate for Queen’s IRC Master Certificate in Organizational Effectiveness.)

I’ve never run into barriers to applying new knowledge when I return to work. One reason is the Ministry involves staff in developing their learning plans with managers – so when I meet with my manager we identify learning opportunities that are of benefit to me and to the organization as part of that process.

Another is that I am so well-supported. I’m in a temporary role as Senior Divisional Project Manager of the Transition Project Office, working with a team of project managers and analysts to coordinate a major restructuring initiative within the Tax Revenue Division. Recently, my Assistant Deputy Minister, several key directors from the division, me, and Brenda Barker all met to talk about what kind of learning was of most use to me, to the division, and to the organization. This demonstrates the value the leaders of this division place on learning.

As part of my OD training at Queen’s IRC my practicum is to develop a cultural transformation strategy. This is necessary for my learning, and for the division. The ADM looked at it as a strategic investment, and provided time, support and money.

So it is not like sending someone on a one-off course and hoping they pick something up. The divisional leadership team did a really thoughtful and strategic review of organizational requirements, divisional requirements, and my personal development, and brought key stakeholders together to discuss it. That really clears the way for learning – and its application on the job.

Executive Sponsor Marion Crane, Assistant Deputy Minister, Tax Revenue Department, Ontario Ministry of Finance, Oshawa

The number one thing is to make the time to connect with the individual before and after a program. Allyson’s project impacts a whole division, and involves a huge cultural change. She emailed me to tell me about the Queen’s learning opportunity, and asked, ‘Can we setup a time to discuss this?’

I’m always glad when people follow up. It allows me to do something I am supportive of, which is to ensure the person has the opportunity to apply what they’ve learned. When Allyson followed up with me about this opportunity, I scheduled a meeting with her, along with key directors in the division, to discuss how the learning could be applied – to the benefit of Allyson, and also the Tax Revenue Division.

To ensure knowledge gets transferred, the organization has to value learning in the first place. This should be a no-brainer, but it isn’t the reality in all organizations.

Also, there’s a difference between management support – such as paying for a course – and active support, where you show that you know what the person is trying to do and demonstrate your intention to assist them.

When the person follows up it provides an opportunity to be actively supportive. Leaders want to be more supportive, but there is just so much time in a day. I think the onus has to be on the employee to make senior management aware of what he or she needs.

When Allyson’s project is finished, we will likely have her interviewed for the Divisional newsletter to share her learning with the 2,800 people in our division.

We have pockets of excellence in which there is an expectation that someone who goes for courses will present findings to learning team members. I encourage this, as you can’t send everyone on the educational program.”

Queen’s IRC Facilitator Brenda Barker Scott

The formula for best-practices learner support is three-fold. Number one, you need committed and enlightened leadership – leadership that sees education as an investment and leadership that enables learners to apply their new knowledge back at the workplace.

Then you need a learner who is ready, able and motivated to do the work.

The third element is a relevant business challenge for applying the learning. It’s got to be a challenge worthy of attention and not a make-work project.

When you have these three elements in place, committed leadership, a motivated learner and a real business challenge, then you have the conditions for real results.

We saw this with the example of the Ontario Ministry of Finance. It was time for Allyson to do her Consulting Skills practicum as part of her Queen’s Organization Effectiveness Master Certificate.

Marion called the senior leadership team together to get their ideas and agreement on the real business opportunity that Allyson might tackle with her practicum. And Allyson was a highly motivated learner – she sought out the program in the first place and approached Marion about it.

As well, Allyson had IRC’s support during her practicum, as we guide people through the process that we teach. So there’s always a coach a tour end to bounce ideas off of, both about content, and process.

Quite simply, it’s about tasking learners with real-life, high-leverage business challenges and then supporting and enabling them along the way. This is why people who come to our Master level programs will now be required to meet with their executive sponsor, identify an organizational challenge, and create an agreement before the program about how learning will be applied. Ideally, learners will meet with their sponsor upon their return to discuss the plan for applying knowledge.

As adults, we learn by doing. The more that we can apply new concepts and skills to meaningful work, the deeper our learning will be. For example, you can read books about tennis, or take lessons, but until you play the game you can’t reflect on what worked, what didn’t work and how you will adjust for the next time. Which is another benefit for learners who have a faculty member or in-house coach to work with: it gives them a person to help them reflect on what they learned and how they can apply it in future.

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