After a harassment investigation or mediation over inappropriate behaviour in a workplace, lawyers say the environment can become toxic to employees. Employment lawyers say that a workplace restoration process is a better way of dealing with the fallout of investigations and can help to return a sense of normalcy to a workplace.
After a harassment investigation or mediation over inappropriate behaviour in a workplace, lawyers say the environment can become toxic to employees. Employment lawyers say that a workplace restoration process is a better way of dealing with the fallout of investigations and can help to return a sense of normalcy to a workplace.
“We all live and now work in the #MeToo world,” says Elana Fleischmann of Elana Fleischmann and Associates and the former head of the dispute resolution office at Ontario’s Ministry of the Attorney General.
“Lawyers have to be able to counsel their clients effectively, and that includes employees, employers, boards of directors, non-profits,” says Fleischmann.
“They also have to be proactive in terms of taking the time to understand what their clients’ workplace cultures are about and monitoring changes when they’re required.”
Fleischmann notes that so much new legislation, both provincially and federally, related to workplaces and harassment, whether that is bullying or sexual harassment, means that lawyers need to understand the changes in order to give clients the right tools in order to ensure that they have formal procedures to keep workplaces healthy and safe, on top of being compliant with the new legislation.
Ontario’s Occupational Health and Safety Act requires an employer to investigate and report back on harassment complaints, and the federal government’s bill C-65 will mirror many of those requirements for federally regulated workplaces, once passed.
Fleischmann notes that mediation can work in situations of criminal sexual assault with the appropriate safeguards in place.
William Goldbloom, an associate with Rubin Thomlinson LLP in Toronto, says that while lawyers recognize that their work resolves certain kinds of conflicts or answers certain questions in a narrow sense, doing an investigation as to whether something has happened or not won’t necessarily delve into the systemic issues at the heart of a harassment complaint.
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“Lawyers, in the nature of their practice, may be limited because they specialize in really fulfilling the legal obligations that organizations have,” says Goldbloom.
“When it comes to wanting to restore a broken relationship, it’s beneficial for lawyers to offer internal or positive solutions for moving forward,” says Tracy Bergeron Lucha, of counsel with Dickinson Wright LLP in Toronto.
Bergeron Lucha notes that the “old way” of moving employees after a harassment investigation can cost a company more in the long run, whether it’s with settlements or paying out terminations.
“Trying to focus on modern ways of restoring the relationship is definitely beneficial,” says Bergeron Lucha.
“In this societal climate, we need to focus on a more collaborative approach,” she adds.
Fleischmann says that, in some cases, a toxic workplace can involve a post-harassment investigation situation where camps have been formed, rumours run rampant and staff is unproductive.
Fleischmann says there is no particular guideline for doing a workplace restoration, but it will often involve her coming in to do an assessment that meets individually with staff and managers in order to find the cause of the dysfunction.
She says the most important aspect of an assessment is earning the trust of the employees.
“That involves really taking the time to speak to them about the process, what they can expect from it, to ensure that it’s a private, confidential process that they won’t be named [in an] individual report, that it’s not disciplinary, it’s not rights-based and won’t go into their HR file,” says Fleischmann.
“Once you establish that trust and credibility, they often open up and tell you what you need to hear.”
Fleischmann says that once the data has been gathered and analyzed, a restoration report is prepared. The report can look at organizational challenges, financial resource challenges, perceptions of workplace culture, the history of interactions between the parties and if there are outside factors such as the impact of a union presence or a history of revenue losses.
The recommendations can include facilitated conversations between parties, coaching or mentoring individuals or creating a code of conduct with the input of staff, which might include salutations upon arriving and leaving the workplace.
“That’s often very important — to feel respected, they want their colleagues to say good morning and good evening to them,” says Fleischmann.
She adds that because staff developed their own code, it tends to be more durable.
Fleischmann says there has been great success in using a restorative justice approach, often by adapting the “sentencing circles” approach within a workplace environment, which helps employees going forward, and that can help guide the creation of a code of conduct.
Goldbloom says he has experience in one-on-one restoration work at the culmination of a workplace investigation, where it was determined that one of the parties involved was in need of remedial coaching.
“Doing one-on-one training allows people to see how their conduct, which they perhaps thought was relatively innocuous or kind and welcome, from an objective perspective would actually be considered unwelcome,” says Goldbloom.
Editor's note June 8, 2018: The May 28, 2018 print edition of the Law Times stated that Elana Fleischmann said that mediation does not apply in situations of criminal sexual assault. This is not accurate. Fleischmann says that mediation can work in situations of criminal sexual assault with the appropriate safeguards in place.