By Rob Lamberti, AdvocateDaily.com Contributor
Every employer in Ontario has the legal obligation to probe all claims of workplace harassment, says Toronto employment lawyer Doug MacLeod.
And it requires someone who is competent to conduct a workplace investigation, MacLeod, principal of MacLeod Law Firm, tells AdvocateDaily.com.
“One thing that is not well known is that if someone comes forward and says, ‘I was just harassed but I don’t want to make a formal complaint,’ the employer has an obligation to investigate anyway,” MacLeod says.
Harassment in the workplace “is becoming a big issue in the employment law field,” he says. It follows the adoption of harassment provisions in the Ontario Health and Safety Act (OSHA), and in 2016 the definition of harassment was expanded to include sexual harassment.
Any employee who believes they were harassed can complain to the employer and a workplace investigation will be launched, MacLeod says. A person claiming sexual harassment can either alert their employer or file a complaint with the Ontario Human Rights Tribunal.
OSHA includes an obligation for each employer to establish an anti-harassment policy — which is required to be posted in a conspicuous place — and to have a written procedure in place outlining how the company will deal with complaints, including investigations, MacLeod says.
“This is a change because in the past when there was harassment, it was dealt with pretty informally, and many employers didn’t deal with it at all,” MacLeod says.
While medium- to large-sized firms comply with these requirements, it may be a struggle for small firms to set up policies as they often deal with crises by “putting out fires” rather than preparing for them, he suggests.
“I would say most small employers don’t have a written policy or a written procedure,” MacLeod says. “Small employers don’t have an HR person or have HR expertise, and are just keeping their heads above water to run the business. Proactive procedures are usually not on their radar.”
Because employers are required to use a competent investigator, they can train an employee or bring in someone from outside, he says. However, there are situations when an external investigator is the only choice.
“For example, if a sexual harassment complaint was filed against the president of a company, you couldn’t have an internal person do the investigation because they report to the president and it would be difficult to be seen as objective,” MacLeod says.
After the review is complete, the investigator must notify the complainant, the person alleged to be the harasser and the employer must then decide how to respond. “Often the investigator is a fact-finder and their job is to get back to the employer and say on a balance of probabilities whether the harassment happened,” MacLeod says, adding witnesses and anyone else who may be involved are also interviewed.
He says the investigator may also discover that the issue is broader than first believed, involving other people and become “what is called scope creep,” MacLeod explains.
“The investigator will go back to the employer and say, ‘This is my finding, but during the course of my investigation this new information was brought to my attention. Do you want to extend my investigation?'” he says.
The one remedy an employee can’t get from a complaint under the Ontario Health and Safety Act is money, MacLeod says. “The legislation prescribes an investigation process, it does not give employees the right to receive any money,” he says.
“They want certain behaviour stopped,” he says. If an investigation finds there was harassment, some sort of discipline is warranted, MacLeod says.
He says the field of workplace investigations is growing rapidly, involving lawyers and human resources consultants. “But they are all really busy right now and unfortunately, what it often means is there is a delay in a company getting to the complaint.”
That could be problematic, as the firm should at least temporarily remove the accused person from their position while awaiting the investigation, “and if somebody can’t get to investigating it in two weeks or a month, it’s very disruptive,” MacLeod says.
“What I say to my clients is that they need to have at least one person internally trained on workplace harassment,” he says.
A number of types of complaints can be handled internally, such as a management style that is interpreted by an employee as harassment. If an employee is properly trained to investigate they can determine if the accused person is managing or harassing.
“You’d want to quickly deal with a complaint like that,” MacLeod says. “If you go outside for something like that, it’s going to take a while and it’s going to be expensive.”
Further, if there is no internal investigator, the Ontario Ministry of Labour can order the employer to hire an external auditor to deal with the matter at the employer’s expense.
Training for workplace harassment investigations is available, MacLeod says, but there doesn’t appear to be any set designation or industry standards.
“I think it will evolve to that,” he says. “I believe the field is mushrooming now and it’s just going to get more prolific.”