Although I have talked about the importance of note-taking before, I just HAD to revisit this topic again.
I have spent the bulk of this year conducting investigations for a host of workplaces who have had employees file internal complaints alleging they have experienced human rights-based or personal harassment. The precise nature of the complaints have been as varied as the organizations I have been called in to help. But, one clear pattern emerged: a failure of those in positions of authority to take notes of any kind when an employee has come to them to disclose an issue of harassment or discrimination. This pattern is problematic because, in my view, it exposes a widespread lack of understanding of the steps organizations need to take to protect themselves from liability when faced with a possible breach of any internal harassment prevention policy.
Whether you are a manager, supervisor or a human resources consultant, you have to be prepared for the day when an employee or colleague comes to you to complain of a breach of your internal harassment prevention policy. As a person in authority, whether you are tagged in your policy as the ‘go-to’ person for complaints or not, you are the conduit of these types of complaints for the organization. And, how you handle those complaints right from the start can make or break your organization’s ability to demonstrate it took the alleged breaches of your internal policy seriously and that the concerns raised were responded to appropriately. Taking good notes of concerns brought to your attention are an important first step to establishing these key responsibilities were recognized.
Unfortunately, in every single case I have investigated this year , the initial person in authority to receive a complaint failed to take notes. The typical responses given for the absence of notes were:
- I wanted to give my full attention to the person who was making the complaint;
- I didn’t have the time;
- I didn’t know I should;
- I thought someone would have the person put their complaint in writing;
- I figured someone would be investigating so they would take any notes needed.
Let’s tackle these responses one by one:
I wanted to give my full attention to the person who was making the complaint
- I can understand you wanting to give your full attention to the person making the complaint. They can come to you in a vulnerable state. They can become very angry or upset as they are recounting what they say they have experienced. But, there really is no reason why you cannot pay attention to the person you are speaking to and jot down basic point form notes while they talk. This point-form note-taking technique will allow you to remember what was said, yet not interrupt the flow of conversation or your ability to pay sufficient attention to the person speaking to you. (Of course, afterwards you will make more detailed notes — see below). And, in fact, if you explain to the person that you want to take some notes while they are speaking because you consider what they have to say to be important, this can help them understand why you are taking notes in the first place. If, instead, you are taken by surprise when an employee makes a disclosure to you (and there is nary a pen or piece of paper in sight) or you feel that note-taking of any kind could serve as a barrier to getting the employee to speak freely to you at the time then, by all means, give your full attention to the person you are meeting with but then the minute they leave, memorialize the meeting by making copious notes of what you just learned;
I didn’t have the time to take notes
- I get that we all have tremendously busy lives these days but that does not excuse you from making notes of a meeting during which an employee came to you to disclose a possible breach of your internal harassment prevention policy. As a person in authority, it is your responsibility to ensure your organization is placed in the best possible position to respond to a complaint of this nature. That starts with getting the details down as soon as you become aware of them. It should not take long to get the notes in writing, but if you’re not the fastest hand-writer or typist around, dictate them (talking is faster than writing) and have someone type out the notes for you such as a member of your support staff (of course, ensure he or she is cautioned to maintain confidentiality of what they become aware of) or make use of the various dictation software options out there that can type out what you say to your computer.
I didn’t know I needed to take notes
- If you do not know that you should be taking notes when faced with an internal harassment complaint, you need to take a course by an external provider or ask your employer to put in place internal training to teach you what you need to do in order to effectively respond to complaints of this kind. In my experience, those in supervisory roles are often given a wide range of training on how to do the practical side of their jobs but are given little to no training on what to do when they become aware of an issue of harassment. Instead, they often end up learning what to do after a complaint arises or, worse, after mistakes are made.
I thought someone would have the employee put their complaint in writing
- While an employee who tells you about a possible breach of your internal harassment prevention policy should be directed by someone in your organization (like you!) to put their complaint in writing, sometimes the written complaint can differ from what the employee told you at first instance. This can be due to the employee thinking that they told you all of the details so they only need to put the ‘bare bones’ into their complaint or it can be due to other reasons like, perhaps, the employee changing their story as they move along in the process. The employee might even say they told you certain things when, in fact, they did not. Or, they can assert you told them certain things when you did not. The inconsistencies between the initial disclosure and the written complaint can cause you tremendous headache when it is your word against theirs. But, when your version of the conversation is bolstered by notes taken at the time or very shortly after,
more weight attaches to what you have to say.
I figured someone would be investigating and they would take any notes needed
- Even if you have an identifiable internal investigation process or your workplace regularly hires external investigators to examine harassment complaints filed in-house, never assume anything about how the process will operate in the particular situation you’ve become involved in or what will be done during it. Moreover, keep in mind that a formal investigation into a workplace human rights or personal harassment complaint may not occur immediately. It could be weeks or even longer before an investigator looks into the matter. During that time, your memory could fade about what you discussed with the employee who complained. Memory issues are one of the biggest challenges during investigations and can cause an organization significant difficulties in avoiding liability (if you can’t remember what you did, how can you possibly defend your actions?). Why risk this? Protect yourself, protect your organization – make timely, detailed notes.
So, what should you put in your notes? Here are my top tips for what should be included:
- When the employee made the disclosure to you and how long you met with the employee;
- Where the disclosure occurred (did the employee come to speak to you in your office or did they tell you their concerns during a cab ride to a meeting?);
- Who was present when the disclosure was made;
- The details of what was disclosed (here, you want to set out everything the employee told you. Don’t leave anything out);
- What you said to the employee in response — did you direct them to file a written complaint? Did you indicate you needed to find out more about your internal process to guide them on how their complaint will be addressed, etc.?
- Your signature/name at the bottom of the notes
- The date and time when the notes were prepared.
If you did any follow-up after your discussion with the employee, make a separate note of this and keep these notes along with the first set of notes.
Any notes you take should be written in legible handwriting or typed out. It is important for a third party who may be reading your notes to be able to read them (whether that is an investigator or human rights tribunal, arbitrator or court). It is also important that YOU can read your notes, keeping in mind you may not be asked about them or your recollection of the employee’s disclosure to you until a long time after that discussion occurred. If you cannot read your own notes, they will be useless to you and to your organization.
If you do not take the notes during the disclosure meeting, you should reduce the information obtained and conveyed during the discussion as soon as possible after. The longer you take to write the notes the more hazy your memory will be and the more questions can be raised subsequently as to how accurate the notes are. In other words, your notes may not be worth the paper they are written on if you significantly delay in preparing your notes. In one of the cases I investigated this year, the manager did not take any notes at the time he met with the complainant about her initial concerns. He met with her varying times over the course of a number of months before the complainant decided to proceed with a formal written complaint. It was only just prior to the complainant filing her formal complaint that the manager took the time to write out the history of his conversations with the complainant. But, this was months down the road, leaving me to question just how accurate those notes were and how serious he took the complainant’s concerns in the first place. Remember, you want these notes to aid in your ability to defend actions your organization took in response to an internal human rights/personal harassment complaint. The more detailed and contemporaneous those notes are, the stronger they will be as a piece of evidence. Contemporaneous notes will beat reconstructed notes any day and can serve to enhance the note-taker’s credibility. Have a look at the Jones v. Amway of Canada Ltd. case (2001 CanLII 26217 (On HRT)) and you’ll see a perfect example of what I mean. In that case, the complainant’s recollection of some key meetings with the respondent supervisors was inconsistent and the notes she produced of those meetings were not made contemporaneously. This was in contrast with the supervisors who took notes at the time the meetings occurred and had a clear recollection of what did and did not happen during those key meetings. Guess who was seen as more credible?
So, let’s put this problematic pattern to rest once and for all. The next time someone comes to you to complain about a potential issue of harassment in your workplace, grab a pen and paper and say “let me make a note of that.”