When a harassment complaint arises, proceed with caution
By Bill Howatt and Kelly VanBuskirk
Legislation puts onus on employers to conduct fair, impartial workplace investigations
By Bill Howatt and Kelly VanBuskirk
The evolution of occupational health and safety (OHS) laws across Canada has resulted in new requirements for companies and organizations to investigate employee harassment and violence concerns.
When allegations of harassment or violence arise in a workplace, chances are high there is a legal duty to conduct a formal investigation and, further, that the investigation may be scrutinized.
Understanding why, when and how to investigate can reduce employers’ risks of spending extraordinary amounts of time and money defending these investigations.
Why you must investigate
In most provinces, governments have passed OHS laws that require employers to act against workplace harassment and violence. There are good reasons for this: A 2018 report from Statistics Canada, Harassment in Canadian Workplaces, found 19 per cent of women and 13 per cent of men had experienced harassmenton the job in the past 12 months.
The most common forms were verbal abuse, humiliating behavior, physical violence and sexual harassment or unwanted sexual attention.
Quite often, harassment negatively impacts both the victim of the behaviour and the workplace generally. As a way of trying to reduce this misconduct, laws require employers to establish anti-harassment policies that set out a process for identifying and dealing with this misconduct.
Anti-harassment laws usually put the onus on employers to receive and investigate complaints and to take appropriate steps to resolve them. It’s a model that has been called “self-regulated regulation,” which means the government has identified the problem (in this case, workplace harassment and violence) and has imposed obligations on employers to address that problem – but has left the actual mechanics to employers.
When employers must investigate
As an immediate first step, review the occupational health and safety laws and human rights standards for your province. You likely have a duty to create (and regularly assess) an anti-harassment and anti-violence policy and, additionally, to educate staff about it.
Your policy should lay out a process for employees to make harassment or violence complaints and how those complaints will be investigated.
A trap some employers fall into is the mistaken idea that only a formal, written complaint must be dealt with. The law indicates otherwise, and the reality is that even a verbal report of harassment or violence triggers a duty to investigate.
OHS laws set the expectation that when information about possible workplace harassment or violence arises it must be analyzed by a competent investigator. The investigator typically can be internal or external to the organization. The employer will need to determine, based on the circumstances, when it warrants an external investigator.
How to investigate possible harassment or violence
Conducting an unfair, incomplete or otherwise sloppy investigation can put your organization at greater risk of government scrutiny, litigation and potential legal liability.
A fair investigation is one that is conducted in a competent, timely and unbiased manner and, while not every investigation has to be done by an external investigator, some issues do require that degree of expertise.
Key questions that should be asked when deciding whether an internal or external investigator should be appointed are:
1. Is there a qualified and skilled internal investigator available?
2. Does that internal investigator have sufficient time available to complete the investigation in a reasonable time?
3. Do any of the key participants in the complaint have close personal or professional relationships with the internal investigator that might give rise to concerns about bias?
Once an investigator (internal or external) has been appointed, that person should proceed carefully by taking these steps into consideration:
- Review applicable legislation and policies.
- Review the complaint and any supporting information.
- Ensure that the respondent has been apprised of the allegations.
- Create an initial witness list (subject to amendment later).
- Prepare interview questions. Avoid asking for opinions (for example, “Do you think that Person X harassed Person Y?”).
- Determine if specialized resources are needed (for example, a computer technician to access emails; a security person to access surveillance video recordings or to unlock secure areas).=
- Map out a schedule for conducting interviews and make appointments.
- Decide how to record your interviews (such as handwritten notes, audio recording or video recording)
Fundamentally, it’s crucial the investigator you appoint be knowledgeable and experienced. While some legislation expressly requires that a “competent person” conduct any investigation, all occupational health and safety legislation implies it. Furthermore, the legal consequences for employers that have appointed inexperienced and untrained investigators have been severe.
Consequences of a bad investigation
Appointing an unqualified investigator might seem like a good cost-saving measure. The courts appear to be unsympathetic to employers that have tasked either biased or inexperienced investigators with the assessment of harassment or violence complaints. Just a few examples:
Doyle v. Zochem Inc., 2017 ONCA 130 (CanLII); 2017 ONSC 920 (CanLII). In this case, the court criticized the employer’s appointment of a manager to conduct an investigation: In addition to other damages, the plaintiff was awarded costs of nearly $425,000.
Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII). Here, the employer’s investigation was found to be incomplete, leading to an incorrect conclusion. In addition to other damages, the plaintiff was awarded $300,000 in aggravated and punitive damages against Walmart.
What you need to know
As an employer, it’s important to be aware of your provincial occupational health and safety legislation. As well, when a harassment or violence complaint is made, it’s crucial that you:
- act quickly;
- refer to your policy for guidance; and
- appoint a qualified and unbiased investigator.
One way to assess an investigator’s competency is to review their experience, education and professional qualifications, as well as what workplace investigation training they have completed. Keep in mind that the type of training an individual has is an important factor, since knowing how to do an investigation is not the same as having the necessary skills.
The more competent and skilled your investigator, the less your risk for having to deal with a faulty investigation in the future.
Bill Howatt is the Ottawa-based president of Howatt HR. Kelly VanBuskirk is a partner with Lawson Creamer in Saint John, N.B.