Canadian Lawyer

May 2021

The most widely read magazine for Canadian lawyers

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4 UPFRONT NEWS ANALYSIS LAWYERS WHO do workplace investiga- tions say that, while the pandemic has not changed their work's fundamental nature, it has created several logistical challenges and amplified pre-existing tensions. "I think that the pandemic essentially has accelerated some claims or provided breeding ground or new forums that that behaviour can take place on," says Trisha Perry, a former liti- gator who now advises organizations on work- place conflict resolution with Resonance Inc. in Saint John, NB. For Nazeer Mitha, a litigator with Harris & Company LLP in Vancouver who conducts misconduct and organization investigations, the growing intolerance for harassment has been one of the most dramatic changes he has seen. "Employers are being a bit more proactive about trying to address the issues of harass- ment and sexual harassment and doing training concerning sexual harassment because there is a cultural change," says Mitha. For Mitha and all workplace investigators, what the pandemic has done is hampered their ability to rely on developing rapport with witnesses. "In my experience, the best option, without a doubt, is an in-person hearing," says Mitha. "It creates a different dynamic because there's . . . a lot of communication that is occurring that is nonverbal. You don't get the same cues and the same level of information through the electronic means." Krista Siedlak, a partner at Turnpenney- Milne LLP, says the workplace disputes she sees in her investigations have not been that different before and during COVID. "I think it is the discussions going on in society over the last several years, such as the Me Too movement or Black Lives Matter, that have opened up a broader dialogue in society and a willingness on the part of employees to come forward," says Siedlak. "I also think that with more employees working virtually, it has allowed them, at least in some situations, to be more reflective of what their experiences were when in the workplace and a desire to have them addressed." Siedlak says procedural fairness and due process are still the top priority when doing workplace investigations during the pandemic, but the tools she uses have changed. Because witnesses need to have a chance to review statements, Siedlak will use screen sharing at the end of the interview or read back witness statements to validate them. Siedlak says clients or witnesses will some- times request an interview be recorded, "[Seizing employee devices] is much harder if you're dealing with five employees [working remotely and] you want to do it simultaneously." Anthony Cole, Dentons Canada COVID hampers workplace investigations While investigators have found building witness rapport and seizing documents a challenge during the pandemic, the need for workplace dispute resolution has only grown, writes Tim Wilbur

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