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Q&A: When is an employer’s duty to investigate workplace harassment triggered?

duty to investigate workplace harassmentIn this conference Q&A, we address when an employer’s duty to investigate workplace harassment is triggered.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding workplace harassment.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.

Q:

Employee voluntarily resigned and then advised of harassing behaviours and that this was the reason for resignation. Should company still conduct investigation?

A:

Under section 32.0.7 (1)(a) the Ontario Occupational Health and Safety Act, requires an employer to conduct an investigation into incidents and complaints of workplace harassment including sexual harassment that is appropriate in the circumstances.

According to the Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act published by the Ontario Ministry of Labour, the duty to investigate is triggered by one of two events: (1) the employer becomes aware of an incident of workplace harassment through a worker, or (2) a written or verbal complaint alleging workplace harassment is made to the employer.

It is still unclear what types of events qualify as “incidents”. This term is not defined in OHSA or the Code of Practice. However, it is safe to conclude that when the employee resigned, it made the employer aware of an incident of workplace harassment that should be investigate.

Why would you investigate after an employee has resigned? Where there are suspicions of workplace harassment, employers have an obligation to properly conduct an investigation into these allegations regardless of whether the complaint is formal or informal.

You don’t want to appear to condone harassment as a result of inaction when made aware of harassment allegations.

You also don’t want the alleged harassment problem, if true, to continue to exist and permeate in the workplace.

You also should want to find out the source of the problem so you can take all reasonable steps to prevent or minimize the potential for harassment to protect the health and safety of all your remaining employees.

Delaying acting on the knowledge that workplace harassment may be happening in your workplace may cause disruption in the workplace and also impact your due diligence defence. Employers have been held liable for delay in investigating.

All complaints should be taken seriously even from a resigning employee. Under OHSA, the employer has a duty to investigate in a timely manner, soon after it has been made aware of an incident of workplace harassment through a worker.

Consult The Human Resources Advisor Ontario, Atlantic or Western editions for a more in-depth discussion on compliance and best practices on the topic of workplace harassment including how to conduct said investigation.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

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Ava Z Moradi, JD

Editor at First Reference
Ava Moradi, JD, received a Juris Doctor (J.D.) at the University of Windsor, Faculty of Law in 2014. She is a writer, researcher and editor in employment and labour law at First Reference. She is one of the content editors for The Human Resources Advisor, Ontario, Western and Atlantic editions and a contributor to First Reference Talks and HRinfodesk.
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