While no two employers are alike, there are common workplace issues that arise for legal advice. This article focuses on the complex issue of investigating harassment complaints.
Harassment complaints have taken on new complexity with the passage of Bill 168 under the Occupational Health and Safety Act. As well, several recent court and
arbitration decisions have led to more exacting standards being imposed on employers who act upon the findings of a workplace investigation so it is critical that they be done properly.
Employers in Ontario should now have formalized violence and harassment policies posted in their workplaces and all employees are required to be trained on these policies. Bill 168 requires that a harassment policy set out how a harassment complaint will be investigated so it is important for the employer to conduct an investigation in a way that is consistent with the workplace policy.
Special challenges are presented when it is a supervisor that is alleged to have engaged in the harassing behavior. Depending on the nature of the allegation either the supervisor or the employee who made the complaint may need to be transferred until the investigation is completed. As with all investigations, it is important to take the complaint seriously and investigate as soon as possible to bring resolution to the complaint in a timely manner. The investigator will want to determine whether or not the behavior is, in fact, harassment as defined under the policy (the definition should be consistent with the definition of harassment under the OHSA).
It is not unusual for employees to feel that they are being harassed by a supervisor when a supervisor is either imposing discipline or performance managing the employee and it is important for employees to understand the difference between harassing behavior and legitimate workplace management.
This issue was recently dealt with in a recent Labour Board decision, Amodeo v Craiglee Nursing Home Limited, where the Board determined that blunt, unflattering performance management, even if it has unpleasant consequences for the employee, is not harassment. If the complaint is not in writing, the complainant should be required to put his/her issues in writing so that the scope of the complaint cannot be “expanded” as the investigation proceeds.
The complainant and the supervisor should be interviewed first. Through these interviews the investigator should be able to determine if any other individuals need to be interviewed. To the extent possible, the investigator should try to limit the number of people who need to be advised of the harassment. It may be necessary to conduct a second interview of the complainant or the supervisor (or both) once the other individuals have been interviewed.
Once the investigation is complete the employer should determine what immediate action, if any, is required. It is important that the complainant be advised of the outcome of the investigation, although they should not be told the specifics of any discipline that may be imposed if the complaint is validated through the investigation process. Investigations should be conducted as quickly and confidentially as possible.
The ultimate goal is to put an end to the workplace conflict by extinguishing inappropriate conduct and giving clear notice to the offending employee that their behavior is unacceptable. Dealing with a harassment complaint is not a matter to be taken lightly as an employee may have legal recourse by way of a Human Rights application, an Occupational Health and Safety complaint, a grievance where the workplace is unionized or a law suit if the employee feels that they can no longer work at the workplace.
Depending on your familiarity in dealing with harassment complaints or the seriousness of the complaint, you may be well advised to use a third party investigator.