Canada: Workplace Harassment Investigations – Getting It Right

Employers in Canada have a legal obligation to conduct an investigation into an employee's complaint of workplace harassment and failing to do so can result in legal liability. The following outlines some of our general recommendations on best practices to approaching workplace investigations.

Follow Your Policy (or Get One in Place)

Since June 15, 2010, in Ontario, employers have been required by the Occupational Health and Safety Act (the "OHSA") to have a written policy against workplace violence and harassment that tells employees how to make a complaint without fear and how the employer will investigate. Many employers also have similar policies related to specific harassment on the protected grounds outlined in the Human Rights Code. The policies may be as straightforward as informing employees that the company will investigate all complaints in a timely manner or it may involve a more formal "stepped" process. Your policies, or lack of policies, will be front and centre in any harassment case and your compliance will be evaluated by the court, the Human Rights Tribunal of Ontario (the "HRTO"), or the Ontario Labour Relations Board (the "OLRB"), as the case may be. If you do not have a policy in place, now is the time to implement one.

Identify All of the Parties

It may be clear from the outset that a complaint involves employee A (the complainant) and employee B (the respondent). However, you will need to also assess, either from the complaint or your initial interview with A, whether there may be any witnesses to or other potential victims of the alleged harassment. The complainant is often reluctant to reveal other names for fear of violating privacy, affecting friendships or reprisal. However, it will be impossible to conduct a thorough and proper investigation without identifying other individuals who can help you assess the truth of the complaint and also to determine whether a broader, more serious problem exists in your workplace.

Determine the Proper Investigator

Although your HR Manager may be experienced in workplace investigations, the nature of the complaint may require you to hire an outside investigator. This is often the case where your workplace is small, where the investigator personally knows or supervises the parties involved, where it involves a key member of management or where the nature of the complaint is complicated and the investigation is likely to consume a large amount of time. Staying impartial and having the resources to conduct a thorough review are crucial qualities in an investigator. In order to eliminate any concern about bias and to ensure that findings of credibility are reliable, consider whether the investigation requires the assistance of an outside investigator.

Confidentiality

Promising a complainant complete confidentiality is often used to gain the complainant's trust but in practice, is not feasible. In order to assess the complaint, the parties and the proper investigator, you will undoubtedly need to speak to other individuals about the complaint including the respondent, internal decision makers and witnesses. Further, in order to give the respondent the ability to respond to the complaint in a fair and meaningful way, you will need to reveal names. These limitations should be explained to the complainant. You can, however, assure the complainant and witnesses that information will be revealed only to those with a "need to know" and that the investigation will not be discussed outside of those individuals.

Stay Impartial

By human nature, we often form opinions on the outcome of an investigation before it begins. This often happens where the complainant is considered a "whiner" or the respondent is "known" to HR as a problem employee. In either case, it is crucial to your investigation to treat every complaint as legitimate and to give every respondent the benefit of the doubt before the investigation is concluded. From a legal liability standpoint, a flawed investigation is as bad as not having conducted an investigation at all.

Act Decisively

The results of the investigation will usually conclude in one of two ways: either the harassment occurred or it did not. The investigator will make findings of credibility in respect of all parties to determine whether the harassment occurred. You will need to communicate the outcome to both the complainant and respondent in a timely manner and have your response ready to implement.

If the investigation concludes that the harassment did occur (or did not occur and the complaint was made in bad faith), you will need to consider the appropriate disciplinary action. Depending on the severity of the complaint, this includes a range of options including a warning, training on respect in the workplace, switching of reporting lines, suspension or termination. In this circumstance, you must also consider the needs of the complainant and whether he or she requires assistance such as EAP. If the investigation concludes that harassment did not occur, you will need to consider how to appropriately communicate this to the complainant who will undoubtedly disagree with the outcome. In this circumstance, you may still need to consider whether switching of reporting lines or other changes are needed in the workplace in order to avoid confrontations between the complainant and respondent. You may also want to consider whether a mediation would be helpful in assisting the parties to rebuild their relationship.

No Reprisal

Every employee who participates in the investigation is protected by law, meaning they cannot be treated adversely, disciplined or terminated for participating. This includes all witnesses and the complainant, even if the investigation concludes that no harassment occurred. So long as the complaint was made in good faith, the complainant is protected by law. Conversely, if your investigation concludes that the complaint was false or malicious, you are at liberty to discipline or terminate the complainant as appropriate. In certain circumstance, an employee's refusal to participate in an investigation may be grounds for discipline. Your policy should outline clearly your expectations that all employees are required to participate in an investigation if required.

Take it Seriously

Your duty to investigate applies even where the complaint appears to be without merit. Even if it is ultimately determined that no harassment occurred, your failure to investigate can result in legal liability. Further, there are at least three separate forums in which an employee in Ontario can seek relief: The HRTO, which has assessed financial penalties against employers in the range of $5,000-$10,000 for failing to investigate a complaint (in addition to whatever damages might be awarded for the harassment itself); the courts, where in a recent decision the court ruled that an employer had not conducted a "serious" investigation, resulting in a finding of constructive dismissal and a damage award of one year's salary plus legal costs; and the OLRB which, late last year, ruled that it had the jurisdiction to entertain an employee's complaint that his employer terminated his employment in retaliation for making a complaint of workplace harassment under the OHSA.

Consider that every step you take in the investigation and outcome may one day be evaluated by one of these three forums. It is a best practice to consider harassment complaints has having two potential liabilities – the first being the alleged harassment itself and whether it occurred, and the second being your approach to the complaint and the investigation.

These are some of the most common questions we receive from our clients about workplace investigations and are not an exhaustive list of all factors to be considered. Like most of your workplace matters, every harassment complaint is different and every investigation has unique factors that should be considered on a case by case basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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