By Claude Balthazard, Ph.D., C.Psych., CHRL
Vice-President, Regulatory Affairs and Registrar at HRPA
In its annual membership survey, HRPA includes questions about professionalization and professional regulation. There is one question which focuses on the perceived fairness and impartiality of investigations carried out by the Association. The results are shown below. As a professional regulatory body, these results are cause for some concern, although the situation may also represent an opportunity.
Thirty-six per cent of HRPA members who responded to the 2015 HRPA Membership Survey indicated that they did not know or were unsure as to whether any investigation carried out by HRPA into a complaint made against them would be fair and impartial. Although a don’t know/not sure response is better than a negative response, confidence in the fairness and impartiality of their decisions means everything for professional regulatory bodies, and therefore this kind of result is cause for concern.
The interesting thing, of course, is that very few survey respondents would have had any direct experience with HRPA’s complaints process; in fact, very few survey respondents would even have had indirect experience with HRPA’s complaints process (i.e., knowing someone who did have direct experience with HRPA’s complaints process). If not on the basis of direct or indirect experience with HRPA’s complaints process, one can only speculate as to the basis for such ratings. It is worthy of note that 36% of survey respondents did not seem willing to presume that HRPA would investigate any complaint against them in a fair and impartial manner.
This article is not about HRPA’s complaint process per se, but rather about (1) the relative lack of confidence in HRPA’s ability to investigate complaints in a fair and impartial manner, (2) why HRPA members should be confident in the fairness and impartiality of any investigation pursuant to a complaint, and (3) what may be done to increase the level of confidence members have in the fairness and impartiality of HRPA’s complaints process.
 The question was also asked in the 2014 HRPA Member Survey. The 2014 results for this question were virtually identical to the 2015 results presented here. This would appear to be a stable result.
Many members do not seem to realize just how much HRPA’s regulatory processes and procedures, including the complaints process, have evolved in the last few years. So let’s tackle the question directly—why should HRPA members be absolutely confident that any complaint made against them would be investigated in fair and impartial manner.
Just to be clear, however, let’s quickly note that the mandate of the Complaints Committee is not to make a decision as to whether the member is guilty of misconduct or not but rather to decide whether there should be a disciplinary hearing into the matter. It is what is called a screening committee. To make this decision, the Complaints Committee is required to carry out a thorough investigation into the allegations and makes a decision based on three criteria:
- If the allegation(s) were to be true, would the matter be serious enough to merit a referral to discipline?
- Is there enough evidence to support prosecution of the case?
- Is it in the public interest to prosecute the case?
If the panel of the Complaints Committee believes all three criteria to be met, the matter is referred to the Discipline Committee. (Actually, before the matter is sent to discipline the case is reviewed by Independent Legal Counsel (see below) to get a legal opinion on the viability of the case. There is also a process to deal with complaints that appear to be without merit without having to carry out a thorough investigation into the allegation(s).
Eight reasons why HRPA members should feel confident that any investigation into a complaint made against them would be fair and impartial:
1. Because, as a quasi-judicial body, HRPA is subject to statutory requirements which set standards of procedural fairness for all key proceedings.
The key to understanding the standard of fairness and impartiality in place at HRPA is to understand that it exercises its regulatory powers pursuant to statute. As a result, many of its proceedings are subject to the Statutory Powers Procedure Act, 1990—the same rules that apply to tribunals such as the Ontario Human Rights Tribunal, the Workplace Safety and Insurance Appeals Tribunal, and the Ontario Labour Relations Board, to name just a few.
2. The regulatory decisions made by HRPA, including decisions of the Complaints Committee, are subject to judicial review by Divisional Court (a division of the Ontario Superior Court).
Should a given process fail to live up to the standards of fairness and impartiality, the affected party could appeal the decision to HRPA’s Appeal Committee and, ultimately, to Ontario’s Divisional Court. Divisional Court would specifically consider matters such as the fairness and impartiality of the process that led to the decision.
3. Panels are comprised of three members, including panels of the Complaints Committee, and one member of the panel is often an external member (not a member of HRPA).
Although members may be concerned as to whether they will be treated fairly throughout the complaints process, there is also the concern on the part of the public that the Association would ‘go soft’ on its members. To mitigate against even an inadvertent or unwitting bias in favour of the member, panels will usually include an external member of the public with no affiliation to the Association.
4. When appropriate, Complaints Committee panels will appoint an external investigator to conduct the investigation.
These external investigators are very skilled at being fair and remaining impartial—that is what they do. These investigators are thorough. Should the case be referred to discipline, the investigation report would be disclosed to the member, and the investigator would be subject to cross-examination.
5. Adjudicative panels, including panels of the Complaints Committee, have access to Independent Legal Counsel (ILC) for advice on procedural matters.
Adjudicative panels, including panels of the Complaints Committee, have access to their own independent legal counsel (paid for by the Association). This independent legal counsel is made available to the panel to provide advice on matters of procedure.
6. HRPA has implemented an extensive Code of Conduct for Members of Adjudicative Committees which all members of adjudicative committees must agree to abide by before taking on and adjudicative duties.
HRPA’s Code of Conduct for Members of Adjudicative Committees deals with matters such as conflict of interest, the conduct of hearings, decision-making, confidentiality and the handling of confidential information, and behaviour vis-à-vis other members of the panel. This Code of Conduct can be downloaded from the HRPA website.
7. HRPA provides training to all its adjudicative committees, including the Complaints Committee, on matters such as decision-making, writing reasons, and so on.
HRPA has developed a series of webinars on various facets of regulatory adjudication such as regulatory governance, panel assessment skills, conducting investigations, conducting hearings, writing reasons, and process review skills. Members of adjudicative committees, including the Complaints Committee, must complete the requisite modules before they can be assigned to a panel.
8. The Registered Human Resources Professionals Act, 2013, imposes a duty of confidentiality upon all who are involved in the administration of the Act (this would include anyone involved in the review of any complaint).
Indeed, the Act provides for fines of up to $25,000. for any person convicted of breaching the duty of confidentiality. This would be a decision made by the courts, not by HRPA).
What can or should be done about it?
As noted above, an interesting aspect of these results is that the vast majority of survey respondents have had no direct nor indirect experience with HRPA’s complaint process. This means that the responses to this question had to be based on something else than direct or indirect experience with the complaints process itself. But this will always be the case; unless one becomes the subject of a complaint, or files a complainant against another member, or one becomes a member of the Complaints Committee, it will be difficult to see the workings of the complaint process and how investigations are handled close up. And given the confidentiality of the information and the sensitivity of the matters being investigated, information about cases that were not sent to discipline will always be general in nature. In fact, there is currently a push in Ontario to make more information about complaints against professionals available to the public. Many professional regulatory bodies are concerned about this trend because allegations can be unjustified.
One can understand the skepticism vis-à-vis the handling of complaints on the part of the public. There are many that believe that self-regulation is an impossible ideal—that even professionals are unable to set aside self-interest and be able to discipline their own. Here we find that members are also not quite convinced that their professional regulatory body can handle complaints in a fair and impartial manner.
In regards to complaints, HRPA members are most concerned about retaliatory complaints by union members and recently terminated employees. Obviously, this a concern that is grounded in reality. Nonetheless, in fulfilling its public protection mandate, the Association cannot presume that any complaint filed by a union member or disgruntled employee must, by the very same fact, be retaliatory or vexatious. By law, HRPA must consider the complaint and investigate the allegations in a fair and impartial manner.
So what can be done to increase the level of confidence of HRPA members into the fairness and impartiality of the complaints process?
The first step is to recognize that it is an issue. That members of the public are somewhat skeptical of HRPA’s complaints process is unfortunate but understandable; that HRPA’s members are somewhat unconvinced of the fairness and impartiality of its complaints process is more concerning because, after all, maintaining a fair and impartial complaints process is a responsibility that HRPA members have taken on collectively.
One thought is that this may be a reflection of where the HR profession is along the regulatory maturity curve. In many ways, HRPA is just beginning to understand its role as a professional regulatory body. As the profession becomes more comfortable with its role as a professional regulatory body, so will the level of confidence of members in its workings.