***Draft for Consultation***
***Version: 18 September 2019***
- Introduction and Scope
- Filing a Complaint
- Pre-Investigation Stage
- Procedural Matters
- Roles and Responsibilities
Note: Capitalized terms used in this document have the meaning assigned to them in Policy 33 – Ethical Behaviour, s.11: Definitions.
These Procedures describe how Complaints of Ethical Misconduct under Policy 33 – Ethical Behaviour, are addressed where the Respondent is a University employee.
This includes Complaints of Harassment, Sexual Harassment, Sexual Violence, and other forms of Ethical Misconduct alleged to have been committed by employees. It does not include Complaints of violence or violations of health and safety covered by Policy 34 – Health, Safety & Environment.
These Procedures do not remove any rights or options available to employees under employee agreements or external fora.
2.1 What Filing a Complaint Means
Filing a Complaint initiates a formal process administered by the University with prescribed steps, timelines and which may result in Corrective Action, including Disciplinary Action, imposed on those involved. Individuals are strongly encouraged to seek advice and explore their options before filing a Complaint (see below).
2.2 Where to Seek Advice
The Conflict Management and Human Rights Office, Sexual Violence Response Coordinators, and Employee and Student Representative Associations (i.e., CUPE 793, Faculty Association of the University of Waterloo, Federation of Students, Graduate Student Association, and University of Waterloo Staff Association) provide confidential consultation to individuals who have experienced or been accused of Ethical Misconduct. They can assist with:
- Accessing supports such as Counselling Services and Health Services;
- Accessing informal resolution processes;
- Seeking Accommodations and Interim Measures;
- Finding support persons;
- Drafting Complaints;
- Accessing external services, such as police reporting or the Ontario Human Rights Tribunal; and
- Navigating grievance and appeal processes.
2.3 Consider Informal Resolution Processes First
Confidential informal processes are available with support from trained University staff. Informal processes can take significantly less time, and potentially preserve, and even enhance, working relationships. Section 6.3 of Policy 33 describes informal resolution options.
2.4 Who Can File a Complaint
Anyone who is aware of potential Ethical Misconduct may file a Complaint. Normally, this is someone who directly experienced or witnessed the Ethical Misconduct. However, if there is enough evidence and it would not violate Natural Justice and Procedural Fairness, the University will address a Complaint brought forward by a third party.
2.5 How to File a Complaint
Complaints against University employees must be submitted in writing to the Director of Complaints Management. Complaints should contain the following information:
- Name and contact information of the individual who allegedly experienced Ethical Misconduct (the Complainant);
- Name of the University employee who allegedly committed Ethical Misconduct (the Respondent);
- The specific details of what happened, including date(s) and location(s);
- Names and contact information of any potential witnesses, and a description of the information those witnesses are expected to provide;
- Relevant supporting documents that the Complainant possesses;
- A list of relevant documents that the Complainant believes other persons may possess.
2.6 Time Limit
Individuals are encouraged to file Complaints at the earliest opportunity, but must do so within one year of the date on which an incident of Ethical Misconduct is alleged to have occurred. If there is a series of incidents, the Complaint must be filed within one year of the date of the last event. Where (i) there are compelling reasons or (ii) a Complaint is of Sexual Violence, the University may investigate a Complaint made outside of this timeframe. However, the longer the time period between an incident and a Complaint, the more difficult it becomes to investigate effectively.
3.1 Preliminary Assessment
Upon receiving a Complaint, the Director of Complaints Management will open a case file and complete a Preliminary Assessment. Based on the nature of the Complaint, the Director of Complaints Management will engage members of the Assessment Team to assist (see s.7.2: Assessment Team).
- Gather information. The Complaint will be reviewed for completeness, and the Director of Complaints Management may request a confidential preliminary interview with the Complainant to clarify any material contained in the Complaint and to provide information about these Procedures.
- Categorize the allegations. A determination will be made as to whether the allegations in the Complaint would constitute Ethical Misconduct under Policy 33, fall within the University’s Jurisdiction (see Policy 33, Appendix A), and whether these Procedures apply.
- Take any immediate action required. The Director of Complaints Management will consider whether any actions are required to protect the safety and well-being of the University community and will notify persons responsible for implementation. This includes arranging for Accommodations or Interim Measures, as well as meeting any reporting requirements under Canadian Law.
4.1 Decision to Investigate
Based on the Preliminary Assessment, the Director of Complaints Management will determine whether to proceed with an Investigation. Within 10 business days of the date on which the Complaint is received, the Director of Complaints Management will either:
- Provide written notice to the Complainant that the Complaint will not proceed, with reasons. If possible, the notice will be communicated in person and the Complainant will be advised of resources available to consult regarding options (see for example, s.2.2: Where to Seek Advice); or
- Provide written notice to the Complainant, Respondent, and Decision-maker of the intent to proceed with an Investigation. If possible, the notice will be communicated in person individually to the Respondent and Complainant. The notice will include:
- a copy of the Complaint (to Respondent only);
- the Mandate of the Investigation;
- links to Policy 33 and these Procedures;
- information about timelines and next steps;
- the name of the Decision-maker and names of any other individuals to whom the Complaint has been provided;
- information about advocacy support and advice available from their Employee or Student Representative Association;
- information about how to access other resources where applicable, including how to request Accommodations or Interim Measures.
4.2 Mandate of the Investigation
The Director of Complaints Management, in consultation with the Assessment Team, will prepare the Mandate of the Investigation. The Mandate will include:
- the names (if known) and/or other identifying information of the relevant parties to the Investigation;
- a summary of the allegations which require Investigation;
- what determinations the Investigator is being asked to make, which may include findings of fact, whether a breach occurred in respect to policy, and/or providing recommendations;
- any relevant law that factual findings will be judged against (such as human rights legislation and/or occupational health and safety legislation);
- any relevant University policy that factual findings will be judged against.
4.3 Selection of an Investigator
In order to ensure consistent application of these Procedures, most Investigations are performed internally. However, external Investigators will be retained when:
- independence must be demonstrated (this includes potential reputational risks to the University and cases in which allegations are made against a member of the University’s Executive Council);
- there is a need to preserve the possibility of legal privilege; and/or
- specialist resources or subject-matter expertise are required.
The Director of Complaints Management will provide the Complainant and Respondent with the name of the proposed Investigator. The Complainant and Respondent will be given an opportunity to request an alternate Investigator if either individual reasonably believes that the proposed Investigator would be biased.
All Investigators will adhere to principles of Natural Justice and Procedural Fairness and will conduct the Investigation in accordance with Appendix A: Investigation Procedures.
4.4 Investigation Timing
Investigations will be completed in a timely manner, and the completed Investigation Report will be submitted no longer than 90 business days from the Decision to Investigate, unless there are compelling reasons why a longer Investigation is needed. Such reasons shall be communicated by the Director of Complaints Management to the Complainant, Respondent, and Decision-maker in writing.
4.5 Investigation Report
The Investigator will provide a written Investigation Report to the Director of Complaints Management and Decision-maker that includes at minimum: the Mandate of the Investigation, a description of the investigation process, the allegations, evidence, analysis, findings of fact and a determination as to whether, on the balance of probabilities, Ethical Misconduct has occurred. The Investigation Report will also include recommendations as to whether Corrective Action (including Disciplinary Action) should be taken.
Based on the Investigation Report, the Director of Complaints Management will prepare a Summary Report containing: a summary of the findings of fact and a determination as to whether there was a violation of Policy 33, with reasons.
Within 7 business days of receiving the Investigation Report, the Decision-maker (identified in accordance with s.7.3: Decision-makers) will meet individually with the Complainant and the Respondent to provide them with the results of the Investigation. In all cases, the Complainant and Respondent will be provided with the Summary Report. They will also each be notified of the status of any Interim Measures or Accommodations that directly impact them.
5.2 Corrective Action, including Disciplinary Action
In consultation with the Director of Complaints Management and members of the Assessment Team as needed, the Decision-maker will determine whether Corrective Action is appropriate (see Policy 33, s.8.7: Corrective Action).
Within 14 business days of the Respondent being notified of the results of the Investigation, the Decision-maker will convey to the Complainant and the Respondent any Corrective Action as follows:
- the Respondent will be informed in writing of all Corrective Action (including Disciplinary Action) to be taken against them;
- the Complainant will receive information about Corrective Action against the Respondent that (i) has a direct impact on them and/or (ii) as required under Canadian Law.
5.3 Post Complaint Follow-up
Regardless of the outcome of a formal process, intervention may be needed by the relevant Responsible University Administrator(s) (as defined in Policy 33, s.5.2) to ensure that positive and respectful working relationships are restored. This may be accomplished with the input of all parties involved and may require the assistance of CMAHRO and/or Human Resources, and the support of Employee and Student Representative Associations to re-establish trust, improve communication and encourage a positive work and learning environment.
Information provided to individuals responsible for implementing these Procedures will be treated with utmost discretion and confidentiality (see Policy 33, s.7: Confidentiality and Privacy).
6.2 External Processes
In the event that a Complaint includes allegations that are also under consideration by a forum external to the University, such as the Human Rights Tribunal of Ontario, civil litigation, or local police, the Director of Complaints Management will consult with the relevant authorities where appropriate and recommend to the Decision-maker whether proceedings should continue, discontinue, or be suspended until proceedings in the other forum are concluded. Where there is an ongoing criminal investigation, the University will cooperate with police.
6.3 Record Keeping
The Director of Complaints Management will keep records of Complaints under these Procedures including: the Complaint, Investigation Report, Decision, and any related correspondence in accordance with Policy 46 – Information Management and applicable Records Classification and Retention Schedules.
6.4 Request for Accommodations and/or Interim Measures
At any stage in these Procedures, a party may request in writing to the Director of Complaints Management that Accommodations or Interim Measures be put in place. The Director of Complaints Management, with assistance from appropriate members of the Assessment Team, will determine whether any actions are required, notify persons responsible for implementation, and coordinate necessary arrangements, in accordance with Policy 33, s.8.6: Interim Measures and Accommodations.
6.5 Request to Withdraw a Complaint
A request to withdraw a Complaint may be made in writing to the Director of Complaints Management at any time before a decision is made. The Director of Complaints Management will consult with members of the Assessment Team and/or the Investigator to determine whether to continue or suspend the Complaint process in accordance with the University’s obligations under Policy 33 and/or Canadian Law.
6.6 Request for Informal Process
At any time before a decision is made, a party may request in writing to the Director of Complaints Management that the Complaint process be suspended in order to pursue an informal process (see Policy 33, s.6.3: Informal Processes). The request must be supported by all parties to the Complaint to be considered. The Director of Complaints Management will take advice from members of the Assessment Team and/or the Investigator and will determine whether to accept or deny the request. They will make best efforts to respect the parties’ wishes, provided that doing so would not violate Policy 33 or Canadian Law.
6.7 Right to Support
Complainants, Respondents and witnesses have the option of being accompanied by a support person of their choosing at any meeting. The Employee and Student Representative Associations can provide or help individuals to access support persons. If an individual retains legal counsel to act on their behalf, they should inform the Director of Complaints Management as soon as possible.
7.1 Director of Complaints Management
- Manages and coordinates formal Complaint and Investigation processes to ensure that they are addressed in a timely, effective and consistent manner in compliance with University policies and procedures;
- Ensures that all parties to a Complaint are periodically updated as to the status of the Complaint;
- Engages informal dispute resolution practitioners and refers individuals to available supports as appropriate;
- Ensures that the University maintains sufficient internal and external investigative resources, and that Investigators and Decision-makers receive training and education to carry out their responsibilities;
- Ensuring that Investigators are aware of and have access to appropriate University supports and resources;
- Tracks pending and closed Complaints in a central location, and coordinates collection and reporting of anonymized data in accordance with University policies and procedures, and legislative requirements.
7.2 Assessment Team
The Assessment Team consists of individuals engaged by the Director of Complaints Management on a case by case basis to support Complaints processes relating to their areas of responsibility within the University. Their role may include: conducting Preliminary Assessments, planning and facilitating Accommodations and Interim Measures, and advising Decision-makers about appropriate Corrective Action.
Members of the Assessment Team will have no vested interest in the potential outcome of a Complaint. They may not be involved with informal processes relating to the same Complaint and may not be eligible to determine an appeal or grievance relating to the Complaint under any of the Employee Agreements.
The Assessment team is required to hold all information relating to Complaints in strict confidence. Identifying information relating to individuals involved with a Complaint will only be disclosed to members of the Assessment Team on a need to know basis.
The Director of Complaints Management will draw upon the directors of the following units or their representatives, depending on the nature of the Complaint:
|Employees (faculty, staff, CUPE 793)||Human Resources Client Services|
|Undergraduate students||Associate Provost, Students|
|Graduate students and postdoctoral fellows||Office of Graduate Studies and Postdoctoral Affairs|
|Senior administrators or members of the Board of Governors||Legal and Immigration Services|
|Workplace accommodations||Occupational Health Nurses, Human Resources, Safety Office|
|Sexual violence||Sexual Violence Prevention & Response|
|Discrimination and other human rights matters||Office of Human Rights, Equity & Inclusion|
|Workplace harassment||Human Resources Client Services|
|Health & safety||Safety Office|
|Safety, security & breaches of law||Police Services|
|Potential for significant legal action and/or significant reputational harm to the University||Legal and Immigration Services|
|The Director of Complaints Management may draw on representatives of other units as necessary in order to appropriately respond to a particular Complaint.|
Decision-makers are individuals who have the authority to determine how the University will respond to the findings of an Investigation. If the Decision-maker (including the Director of Complaints Management) is in conflict of interest with regard to a Complaint, the Vice-President, Academic & Provost will appoint an alternative individual.
|Staff member (including student employees)||Least senior Executive Council member to whom the person or their unit reports|
|Faculty member (including regular and non-regular appointments)||Faculty Dean|
|Postdoctoral fellow||Faculty Dean|
|CUPE Local 793 member||Associate Provost, Human Resources|
|Executive Council member (except the President)||President or their designate|
|The President||Chair of the Board of Governors or their designate|
|*If a Respondent falls under multiple categories (for example, a student who is also an employee, a staff member with a teaching appointment, or a faculty member with a staff appointment), the Decision-maker is determined according to the capacity that the person was acting in during the alleged misconduct.|
“Accommodation” refers to adjustments that an individual may request to their own academic, workplace, or residence arrangements to ensure they have continued access to educational and employment programs and activities.
“Assessment Team” – see s.7.2: Assessment Team.
“Complainant” refers to the person who is making a Complaint.
“Complaint” means an allegation of Ethical Misconduct pursued under this policy. A Complaint is made when an individual notifies the Director of Complaints Management of the allegation, and requests a formal response from the University.
“Conflict of Interest” – see Policy 33, Appendix B: Examples of Ethical Misconduct.
“Decision to Investigate” – see s.4.1: Decision to Investigate.
“Decision-maker/Decision-makers” – see s.7.3: Decision-makers.
“ Mandate (of the Investigation)” – see s.4.2: Mandate of the Investigation.
“Interim Measures” refers to measures that may be imposed on a person alleged to have committed Ethical Misconduct.
“Investigation” – see s.4: Investigation.
“Investigation Report” – see s.4.5: Investigation Report.
“Investigator” refers to the individual(s) who undertake an Investigation; see s.4.3: Selection of the Investigator.
“Preliminary Assessment” – see s3.1: Preliminary Assessment.
“Respondent” refers to the person against whom a Complaint has been filed.
“Sexual Harassment” – see Policy 33, s.11: Definitions.
“Sexual Violence” – see Policy 33, s.11: Definitions.
“Summary Report” – see s.4.5: Investigation Report.
Investigators will be:
- experienced with internal investigation processes and Natural Justice and Procedural Fairness (and in cases of Sexual Violence, with trauma-informed investigation processes);
- neutral and unbiased in regard to the Investigation (including any conflicts of interest that could be perceived as bias);
- knowledgeable of relevant legal, policy and compliance requirements relating to the core subject matter of the Investigation;
- able to maintain confidentiality of sensitive information; and
- available to conduct the Investigation in a timely manner.
At a minimum, the Investigator will:
- Interview the Complainant to ensure a clear understanding of the Complaint, whether there were any witnesses, and to collect any relevant evidence.
- Interview the witnesses the Complainant identifies and collect any relevant evidence they can provide. In deciding whether to interview a witness, the main factor is whether the witness has information relevant to the objective of the investigation.
- Interview the Respondent and provide the Respondent with an opportunity to know and respond to all allegations raised against them. Collect any relevant evidence from the Respondent.
- Interview the witnesses the Respondent identifies and collect any relevant evidence they can provide.
- Collect and review all relevant information and documents that have been provided;
- Conduct follow-up interviews as needed to ensure that the Complainant and Respondent have had an opportunity to hear and respond to any information or allegations that may be relevant to the outcome of the investigation.
- Provide the Director of Complaints Management with regular updates about the progress of the Investigation.
Participant Interview Protocols
When conducting interviews, the Investigator will:
- Remind each participant that the Investigation is confidential and that each participant has a distinct and full responsibility to maintain that confidentiality.
- Inform participants that disclosure of information is limited to people who have a legitimate reason to know, or are required to know by legislation;
- Review the interview with the participant to clarify their responses and ensure that key issues have been discussed;
- Advise participants that investigation results are confidential and that specific Corrective Actions, including Disciplinary Actions, may not be communicated to them;
- Describe next steps for the participant, if any.
The Mandate of the Investigation may be modified with the approval of the Director of Complaints Management if circumstances warrant (e.g., additional information comes to light that is relevant to the complaint).
Formal Complaint Procedure:
|Any Member of the University||
Within one year of the incident or last of a series of incidents. Deadline may be extended where there are compelling reasons or the Complaint is of Sexual Violence,(s.2.6: Time Limit)
|Provide the Complaint and any other relevant information to the Director of Complaints Management|
|Director of Complaints Management||
On receipt of Complaint(s.3: Pre-Investigation Stage)
|Undertake a preliminary assessment to determine whether the complaint will be investigated and whether accommodations and or interim measures are necessary.|
|Director of Complaints Management||Within 7 business days of having received the Complaint.||Advise Complainant whether the complaint will be investigated. If the complaint will proceed, notify the Respondent and Decision-maker of the complaint and the decision to investigate.|
If Investigation Proceeds:
|Director of Complaints Management||Upon Decision to Investigate||Advise parties of the proposed investigator, develop Mandate for Investigation.|
|Investigator||Within 90 business Days of the Decision to Investigate||Undertake investigation and provide an Investigation Report to the Director of Complaints Management and Decision-maker|
|Decision-maker||Within 7 business days of receiving the Investigation Report||Meet with each party to provide a summary of the investigation findings and determination.|
|Decision- maker||Within 14 business days of having met with the respondent regarding the results of the Investigation.||Decide whether Corrective Action, including Discipline, is appropriate. Communicate Decisions to the Complainant and Respondent and to the Director of Complaints Management.|