One, don’t panic.
Two, don’t pre-judge or make assumptions.
Three, take it seriously.
These days, allegations of “harassment” or “bullying” can make people tense up very quickly. Understandably so as reputations are at stake and missteps can be costly – like, in the landmark case of Boucher v. Walmart Canada Corp where the retailer was ordered to pay damages totalling $410,000 plus 20 weeks’ salary for conducting a shoddy in-house investigation following allegations of workplace bullying and harassment.
Such workplace incidents have become more prevalent according to a national study that found 71.4% of employees in Canada have experienced some form of harassment in the workplace. The pandemic may be a culprit as well due to mental health struggles experienced by many leading to workplaces becoming more emotionally charged, short fused and rife with interpersonal conflict.
So what is an employer or manager to do upon being apprised of a harassment complaint? This blog series will help guide leaders on how best to approach such complaints in different stages of the complaint cycle:
Stage 1: Before the investigation
Stage 2: Conducting the Investigation
Stage 3: After the investigation
For this article, we will focus on the key steps/considerations before the investigation stage.
Understand your obligations
All employers regardless of size, have a legal obligation to ensure a safe and healthy work environment for employees. This means a workplace must be harassment, violence and discrimination free. When incidents arise, employers then have a duty to investigate those claims as required under legislation.
Occupational Health and Safety Act (OHSA)
For provincially regulated businesses in Ontario, the Occupational Health and Safety Act (Bill 168 & Bill 132) obligates employers to investigate, document and compile a report for all incidents or complaints of workplace violence and harassment that is appropriate in the circumstances. The duty to investigate is an explicit requirement under the OHSA and if an investigation is not done or done fairly and thoroughly, the Ministry of Labour has the authority to order a third-party investigation be completed. Aside from regulatory enforcement, employers can also suffer workplace morale issues, absenteeism and/or turnover if harassment complaints are allowed to fester which can all lead to costly litigation risk down the road as well.
Canada Labour Code (CLC)
Under the Canada Labour Code (Bill C-65), federally regulated employers (banks, telecom, airlines, postal services, etc.) face similar obligations in addressing incidents of harassment or violence in the workplace as provincially regulated employers since January 1, 2021.
The key difference is, before fully investigating, the employer must first exhaust efforts to negotiate a resolution within 45 days of the incident being reported. The legislation requires that employers make “every reasonable effort to resolve an occurrence” which can entail bringing the parties together to work things out initially. This may be possible for situations where the evidence is clear and undisputed, however, in my experience, this is often not the case. If unsuccessful, the next step in the resolution process would be conciliation (as long as both parties agree to a facilitator to help them settle the dispute) or investigation.
In the event the conciliation process breaks down or if the complainant or principal party requests an investigation be done, then the matter must be investigated by an impartial, qualified, third-party investigator as defined by Bill C-65.
Human Rights Code (the Code)
The Human Rights Code (the Code) mandates employers provide employees with an environment free from harassment and discrimination. In line with this obligation, the duty to investigate a claim is then implied.
Treating someone or a group differently or unequally to their disadvantage can be considered harassment or discrimination if it is because of a protected reason (i.e. race, age, sex, disability, religion, family and marital status, etc. ). In the event an incident linked to a protected ground is not dealt with properly under the eyes of the law, an employee can file a complaint with the Human Rights Commission – the governing body that has broad powers to make orders and award remedies if harassment and/or discrimination is found. Human rights violations can pose a significant liability for employers where damage awards can run in the tens and hundreds of thousands of dollars.
Get the details
Upon learning of an incident of harassment in the workplace, it is important to take the matter seriously by taking prompt action. The first step is to gather as much detail as you can about the incident(s) through active listening without bias or judgement to make the employee feel heard. The complaint should be fully documented in writing either by the complainant or the person receiving the complaint as well (preferably the former so the allegations are documented first hand to avoid misinterpretations).
Coming forward with a complaint is often not easy to do for most staff. Fear of retaliation and stigma in the workplace are the key reasons holding employees back. And so, the priority here is to help them open up to uncover the “who, what, when and where” of each incident. This information will help you and/or an external investigator better define the scope of the investigation and the appropriate next steps. Mind you, it may not be necessary to conduct a formal investigation in every situation so the more details you can gather at this stage, the better you can decide the appropriate action to take and the level of diligence that’s required.
Assess internal capacity
Once you’ve got an understanding of the specific allegation(s) you are dealing with (bear in mind that things may not be what they seem initially so keep an open mind as you start peeling away at the onion), turn the focus inwards to then assess whether you’ve got the resources and time to conduct a proper investigation in-house. Below are some key questions to ask before deciding:
a) Do you have trained staff with the know-how to properly address the complaint and/or investigate internally to reduce risk and meet regulatory requirements?
b) Does the person have the time and resources (on top of current workloads) to interview all the parties involved, to document the full investigation process and produce a comprehensive report at the end?
c) Is the person neutral or perceived to be neutral by all parties?
d) Are there multiple incidents, allegations and/or complainants involved which may be more complex and time-consuming to conduct in-house?
e) Is the complaint against a senior leader or executive where there is more legal risk and potential for bias due to internal politics?
Depending on your answers to the above questions which are key internal investigation challenges I’ve written previous articles on (Part 1, Part 2, Part 3) you can then better decide whether you’ve got the internal capacity to properly handle the complaint in-house or to hire externally for a qualified investigator.
Review policy and procedures
Internal workplace violence and harassment policies and procedures should be reviewed to assess whether the incident(s) in question fall within the policy and/or the legal definition of workplace harassment to trigger your compliance obligations.
Under the OHSA, workplace harassment is defined as:
“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”
Similarly under the CLC, workplace harassment is
“any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.”
In both definitions, the behaviour or conduct includes workplace bullying and sexual harassment. They do not have to be related to a protected ground unlike what’s required under the Human Rights Code. However, it should be noted that reasonable actions relating to the management and direction of workers and/or differences in opinion in the workplace are not considered to be harassment.
If the complaint/incident does fall within the scope and definition of the company’s harassment policy, it is important that the complaint and investigation procedures outlined within be properly followed. If not, this can potentially poke holes in the investigation process as there’s an opportunity for a party to discredit the results when a company’s own written procedure is not followed.
In the event the policy is outdated or inadequate for the situation at hand, then it would be good to document and communicate those changes in procedure to the parties where possible.
A good investigation need to be properly set up – and that requires planning. Some tips for employers on what to plan for:
a) Anticipate potential challenges so interim measures can be put in place to minimize impacts to the workplace and the investigation process. Does someone need to be removed from the workplace? Does certain building/IT access need to be suspended for the duration of the investigation? How will work be redistributed in the meantime? Where to conduct interviews to encourage participation and get participants to open up?
b) Clearly define the mandate – what (incidents/allegations) to investigate and the purpose of the investigation. Beyond determining whether an allegation is substantiated, is the mandate also to determine if an internal policy was breached? Are different reports required for different audiences or stakeholders? Clearly defining the mandate will help limit the scope, time and cost of the investigation from expanding out of control.
c) Identify what evidence need to be gathered, where they are located, if authorization is required and anticipate any roadblocks in accessing them.
d) Communication plan (internal/external) where key escalation contacts are identified. The purpose is to help set expectations about protecting confidentiality, reprisals or changes in workflow so as to lessen client impacts and disruptions in the office.
e) Determine appropriate decisions makers in this case to remove potential bias, conflict of interest and to protect confidentiality.
Following the steps and considerations laid out in this article will help calm your nerves about what to do next when you are first informed of a harassment complaint in the workplace. Stay tuned for more employer insights in our next blog of this series where we will examine key considerations during the investigation phase.