As Ontario employers are aware, the Occupational Health and Safety Act (“OHSA”) sets out the obligations of employers when it comes to workplace safety. OHSA contains specific provisions which deal with how employers must deal with workplace violence and harassment, including a mandatory investigation provision for workplace harassment.
Section 32.0.7(1)(a) of OHSA sets out that to protect a worker from workplace harassment, an employer shall ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.
The inclusion of the language “incidents and complaints” is significant. From the fact that not just the word “complaint” was used, it is clear that the intent of the legislation is to trigger the duty to investigate based on any instance of harassment, not just those that are reported directly. This interpretation is confirmed by the provincial Code of Practice to Address Workplace Harassment (“Code of Practice”), which reads:
“An employer must ensure an investigation is conducted into workplace harassment, whether a worker has formally or informally made a complaint or the employer is otherwise aware of an incident(s) (for example, if a supervisor witnessed it or learned about it from a third party).”
This means that when an employer becomes aware of anything that could be workplace harassment, however that knowledge is acquired, the duty to perform an investigation is triggered.
To err on the side of caution, employers should take a broad approach to assessing when a complaint has been made. Any time an employee reports or brings to the attention of supervisors or management conduct which could be harassment, an investigation should be performed. This is true regardless of whether the employee categorizes their disclosure as an official complaint or report.
Similarly, a wide approach should be taken to interpreting what constitutes an “incident” of workplace harassment. The Code of Practice provides a starting point of what is considered harassment with a list of examples which employers may want to include in their workplace harassment policy:
- offensive or intimidating comments or jokes;
- bullying or aggressive behaviour;
- displaying or circulating offensive pictures or materials;
- inappropriate staring;
- workplace sexual harassment;
- isolating or making fun of a worker because of gender identity
An example of how the Ontario Labour Relations Board (OLRB) interprets the language of “incidents and complaints” and the duty to investigate can be seen in E.S. Fox Limited v A Director under the Occupational Health and Safety Act, 2020 CanLII 75931 (ON LRB) (“E.S. Fox”). In E.S. Fox the OLRB confirmed that an employer has a duty to investigate incidents of harassment even without formal complaints and even when the individual making the report is no longer an employee. Lisette Bott, a former employee, made an OHSA complaint that her former manager had harassed her for a period of seven years before her termination. The Ministry of Labour investigated the complaint and ordered the employer to engage in a proper OHSA harassment investigation. The employer appealed. At the time of the decision, the alleged harasser was still in service to the employer.
Among other things, the employer attempted to argue that they never received a formal complaint from Ms. Bott. The OLRB Chair found that the fact that the employer had not received a formal complaint was immaterial to its duty to carry out an investigation into allegations of harassment as the duty to initiate an investigation is triggered, according to section 32.0.7(1)(a) by “incidents and complaints of workplace harassment”. They wrote:
“Having regard to the use of the terms “incidents” and “complaints”, and relying on the plain and ordinary meanings of those terms, the Act contemplates investigations where there is an incident of workplace harassment. In other words, an incident of workplace harassment is, in and of itself, grounds for an investigation being carried. That incident can be, but does have to be, the subject of a complaint.”
Further, the OLRB ruled that in the circumstances of this case, the fact that Ms. Bott was no longer employed did not prevent her from filing her complaint. The Chair found that the continued presence of Ms. Bott’s alleged harasser at the workplace constituted an ongoing workplace hazard to those employees who remain at the workplace.
The OLRB made clear in this case that a lack of a formal complaint has no impact on the duty of the employer to investigate harassment in the workplace, and further, that in any circumstance where there is a workplace hazard arising out of an employee engaging in harassment, even towards a former employee, an investigation must be performed.
Another example of the repercussions of failing to adequately investigate and respond to workplace harassment can be seen in Chmielewski v Sunbelt Rentals of Canada Inc., 2019 CanLII 117806 (ON LRB) (“Chmielewski”). In Chmielewski, the unionized employee made repeated complaints about ongoing harassment from her colleagues as well as other violations of safe work conditions under OHSA. However, the employer failed to do an investigation because they were seemingly frustrated by the volume of her complaints, and what they viewed as a failure on her part to “get along” with her colleagues. Eventually, Ms. Chmielewski was terminated without her complaints ever being investigated or addressed. The OLRB found that the termination was reprisal, and granted her reinstatement and lost wages.
What if an employee doesn’t want an investigation?
Sometimes an employee may make a report of workplace harassment, but may not wish for the complaint to be investigated. This can place management and human resources professionals in a difficult position where they are under a legal obligation to investigate, but are being directly asked by the employee not to do so. Under these circumstances an employer must still investigate, however, it may be helpful to offer an in-depth explanation of why this is the case to the employee. This could include describing the obligations under OHSA, and also highlighting the relevant sections from the workplace harassment policy dealing with how confidential information will be treated during and after the investigation. Providing adequate training for professionals who are having these difficult conversations with employees can assist in making sure employee concerns are handled with appropriate sensitivity.
Completing an investigation in every relevant circumstance is important not only because of the clear legal duty under OHSA, but also because of the overall impact on the workplace environment when harassment is left unchallenged. Having a workplace where employees do not feel harassment will be responded to by management can impact many aspects of morale. It can also lead to employees not feeling as though their complaints will be taken seriously and choosing not to report harassment at all. This can lead to future legal claims against the employer, and of course, can be very damaging to the day-to-day operations of the business and the health of its employees.
Taking a broad approach to investigating every incident and complaint of harassment is an extremely important duty for employers in ensuring they are complying with OHSA and maintaining a safe and healthy workplace.
By Nicole Simes and Zoë Paddock
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