Investigating Workplace Harassment Complaints: The Basics
Canada’s Governor General, Julie Payette, recently resigned after reviewing a report that was prepared by a person who had spoken to many employees who made workplace harassment allegations against her.
This blog discusses an employer’s legal obligation to investigate workplace harassment complaints and how to limit the cost of these investigations.
Does an Employer have a duty to investigate a workplace harassment complaint?
Ontario’s Occupational Health & Safety Act (“OHSA”) requires most employers to have a written workplace harassment policy and have a written workplace harassment investigation procedure. An employer is required to conduct an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances. In other words, a formal complaint is not required to trigger an investigation.
At the end of a workplace harassment investigation, the employer is required to communicate the results of the investigation to the employee who filed the complaint and any corrective action that is taken.
What is workplace harassment?
I have been advising employers for over 30 years and I still cannot come up with a useful definition for workplace harassment.
Under OHSA, “workplace harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
(b) workplace sexual harassment;
If an employer receives a sexual harassment complaint there are more legal issues to address. For a discussion of some of these issues, click here.
It is important to note that a reasonable action taken by a supervisor relating to the management and/or direction of a worker is NOT workplace harassment.
In my experience, a workplace harassment complaint is often triggered when an employer starts performance managing an employee, or a new manager starts managing an employee more closely. It is up to the investigator to decide whether the alleged harassment is in fact a reasonable management action.
Who should investigate a workplace harassment complaint?
An investigation into a workplace harassment complaint must be appropriate in the circumstances. The employer is not required to retain an external investigator.
I suggest that every employer send someone within the organization on a workplace harassment investigation training course. I think many – if not most- workplace harassment complaints can be investigated internally.
Complaints against the most senior manager of the organization like Ms. Payette, must however, generally be investigated externally.
What is the scope of a workplace harassment Investigation?
An investigation is usually triggered by an employee complaint. Initially, the allegations in the complaint generally determines the scope of the investigation.
The investigator usually speaks with the employee and then the person who is alleged to have engaged in the workplace harassment. During these discussions, the names of witnesses to the alleged harassment are often disclosed.
Often one of the most difficult issues to resolve during an investigation is how many witnesses to interview. The challenge is to interview enough witnesses to allow the investigator to make an informed finding on whether the harassment took place. In Ms. Payette’s case, the workplace investigator interviewed over 90 witnesses. Was it really necessary to interview this many witnesses?
How long does a workplace harassment investigation take?
In my experience, most complaints take too long to investigate. An employer can speed up the process by using a competent internal investigator where possible. The investigator should speak with the person who filed the complaint ASAP. Shortly thereafter the investigator should speak with the alleged harasser. Then the employer should decide whether the investigator needs to interview any witnesses. A lengthy written report is not normally required.
How does an Employer respond to the Investigator’s findings?
Once an employer has received the investigator’s findings the employer must decide whether to take corrective action such as some form of discipline. If the investigator finds that workplace harassment took place then some kind of discipline is usually imposed. It could be a written warning, a suspension or a termination. Corrective action can include some kind of workplace harassment training. It may also involve some restorative work to deal with the fall out of the investigation. Note: The person who filed the complaint is not generally entitled to be paid any money if the investigator concludes the employee was harassed. There are exceptions such as when the employee quits as a result of workplace harassment and a judge concludes the person was constructively dismissed because of a poisoned work environment. For a discussion of what constitutes a poisoned work environment, click here.
Lessons to Be Learned
- Every employer should make sure it is complying with the minimum legal requirements which often includes having a written workplace harassment policy, and a written workplace harassment complaint procedure.
- Every employer should make sure that at least one person in the organization is trained on how to conduct a workplace harassment investigation.
- All workplace harassment complaints should be taken seriously and investigated quickly. The employer should obtain employment law advice before deciding how to respond to the investigator’s findings.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]