Investigations at educational institutions can be complex

By Tony Poland, LegalMatters Staff • The intricacies of the education sector can present an added layer of challenges to workplace investigations, says lawyer and workplace investigator Lydia Bay.

“The work we do in these investigations is not dissimilar to what occurs in a non-unionized environment because, ultimately, we are searching for answers. However, there are aspects that can make them more unique,” says Bay, of Mortimer Khoraych PC. “The unionized education sector is not only governed by many pieces of legislation, but we are interacting with people, some of whom may be minors who may have external representation who also want to be involved. The combination of these factors can add a degree of complexity that perhaps doesn’t exist at other non-unionized workplaces.”

She says she spent five years in staff relations at a post-secondary institution in various senior roles and found that people don’t always fully comprehend the interpersonal scope of educational institutions.

‘More to a post-secondary institution’

“Even some people close to me didn’t seem to completely understand my job and that a university isn’t limited to teachers and students,” Bay tells LegalMattersCanada.ca. “There is so much more to a post-secondary institution or a school board.

“At the university where I worked, there were many different professions — from nurses, chefs, and special constables, to agricultural assistants, operating engineers and veterinarians,” she adds. “There were people who took care of the grounds and maintenance. People doing administrative work and so many others, such as researchers and post-docs.”

Bay says there are “many different types of investigations that can arise in this sector.”

“Whether it be allegations from students against other students or students against people in the administration, or between faculty members or different employees belonging to different locals or employees in the same union group,” she says. “There could be former students who raise allegations against a current student or employee. Or maybe one of the parties is a staff member who has just retired.”

Many people can have a vested interest in the investigation, Bay says.

Multiple players at the table

“There can be multiple players at the table,” she explains. “And obviously they want to represent their members and participate in our investigation, as long as that is permissible by the client, by policy or the collective agreement, which is almost always the case.

“It gives us another aspect to coordinate, but it can be extremely helpful to have the union’s participation,” Bay adds. “They will likely have had experience in the investigations process, and they know how it works. They can help explain aspects of the process to their member. However, their participation can, at times, present a little bit more of a challenge.”

She says it can be similar to having a lawyer attend on behalf of a non-unionized employee.

 “The union representatives’ purpose is to advocate for the employee and to be a support person,” Bay says. “But in terms of the investigation, we expect them to behave the same way a lawyer, family member, or other support person for a non-unionized employee would. They are not there to speak for their member, answer questions on their behalf, or provide evidence. They are there to provide any support the person might need.”

There can be challenges when a union representative participates in the process, she notes.

“There have been times when a person may have been coached to only answer exactly what has been asked, for example, which can lead to answers that are more abrupt, vague, or lack the depth they would if the person had spoken freely,” says Bay. “However, in the majority of instances, I find that the positives outweigh the negatives. In fact, a union representative can help the person we are interviewing understand things a little bit better.”

Having support can be helpful

Just knowing someone is there to support them can make the process easier, she says.

“No matter what part the person is playing in the investigation, whether they are the complainant, the respondent, or a witness, there is a good chance they are going to be anxious and nervous,” Bay says. “Having someone there whom they are familiar with can put them at ease.”

She says having the possible involvement of students who are minors adds another dynamic to her investigations.

“I have conducted school board investigations where we have been sure to discuss the process with the parents before we speak with their students,” says Bay. “Even if the student was not technically a minor and they were comfortable speaking with me on their own, we provided the option for their parent to be present if that helped them participate in the investigation process.”

It is not just the number of people to consider in the fact-finding process, she says.

“A major consideration is how regulated these institutions are,” Bay says. “There is a great deal of legislation that has been enacted for the various educational sectors that you need to be aware of, thinking about and researching in the course of your investigation.

‘A double-edged sword’

“It is not the same as a small non-unionized company with its own harassment policy, and that may be the only document you are working with. There are many other documents, acts, regulations, collective agreements and policies to consider,” she adds. “It can make the investigation process more challenging, but it can also be helpful in having the rules and procedures laid out. Of course, it could also be a double-edged sword in some cases.”

The level of cooperation with unions is also a consideration, Bay says.

“It can go both ways. We have had situations where a union may raise concerns during the investigation and are doing what they believe is best for their members,” she says. “But that can stall the process, and, as external investigators, we may have to pause as the client works to resolve any concerns internally before we can continue.

“However, there are other moments where our job is made easier because the union has been through this before,” Bay notes. “They may take on the role of communicating with us on their members’ behalf to schedule interviews and provide the information that has been requested. That takes a bit of a burden off the person participating in the investigation, giving them one less thing to worry about.”

She says additional challenges can arise when dealing with a small union.

Need to maintain confidentiality

“We need to maintain confidentiality as much as possible and avoid conflicts of interest,” Bay says. “If there is only a certain number of union representatives available, but many different witnesses to interview, it can make things more difficult. You have to get creative to try and find multiple different representatives for the witnesses, complainant, and the respondent, sometimes looking to union executives at the provincial level, for example.”

She says dealing with more than one union can also add to the level of complexity.

 “Whether it is at the school board level or the post-secondary level, there can be several different unions involved in any one investigation,” Bay says. “For example, teachers or principals each have their own representatives who will want to ensure they are advocating on behalf of and supporting their members. In the university sector, there is an entire plethora of different employee groups that could be involved, whether it is faculty or the trades.”

In the end, any investigation will have its challenges to overcome, whether a union is involved or not, she says.

Unique insight into the education system

Having nine years of experience in litigation in private practice, policy, and staff relations at a post-secondary institution has given her a unique insight into the education system, Bay says.

“Even from the perspective of understanding where the union is coming from or what the client might have been thinking when they took X, Y or Z step,” she explains “As well, just having a base understanding of what the legislation is and how it is put into practice at the institutional level is helpful.

“That is not to say that these investigations cannot be done without that experience. But it is definitely going to take a bit more legwork to do the research and review the legislation and understand what is going on or what steps need to be taken,” Bay adds. “Of course, at our firm, with every file we get, if a person on the team has a certain expertise or experience conducting that type of investigation, it just makes more sense for them to take the lead on that file.”

“In every file, we are comprehensive and detailed,” Bay says. “However, because of who might be involved at the educational institution level and the issues that might be at play, there are different layers that you need to be cognizant of and account for to ensure a thorough, fair and balanced investigation.”

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