When does an employer have to investigate a complaint?
By Bill Howatt and Kelly VanBuskirk
The purpose of a policy is to reduce employees’ risk for mental harms, protect employer from liabilities and have a process for resolving misconduct
By Bill Howatt and Kelly VanBuskirk
Facilitating employees’ psychological health and safety is a topic being discussed more today at the senior leadership table. Why?
Several reasons: from society changes with respect to how employees expect to be treated to increased costs associated with psychological injuries, as well as changes to occupational health and safety legislation (OHS).
The subjects of harassment and sexual harassment have received heightened attention in the past several years because most Canadian employers are now obligated under OHS to actively prevent and, when necessary, address these behaviours. A workplace anti-harassment policy is helpful in some regard, but it may also cause confusion as to what an employer has to do about employee misconduct and when, especially if it distinguishes between “informal” and “formal” complaint processes.
Knowing what to do in response to harassment and sexual harassment allegations, and when to do it, can not only save an employer thousands of dollars in legal expenses, it can more importantly protect employees and entire workplaces from damaging and sometimes disabling psychological injuries.
What to do
Most OHS laws in Canada require employers to implement anti-harassment policies. As a starting point, an employer should review its existing policy against the applicable legislation to ensure that the policy complies with all legal requirements.
If an employer doesn’t have a policy, it should create one, ensure it complies with the legislation that’s most relevant to the employer (provincial or federal) and educate and train its workforce on the policy.
A thoughtful policy will make it clear that not all situations require a full formal investigation, but there will be cases when a sexual harassment complaint will result in a full investigation. The purpose of a policy is to reduce employees’ risk for mental harms, protect the employer from liabilities and have a process for addressing and resolving workplace misconduct. There may be times when an informal investigation that focuses on solving an issue and quickly finding a resolution will make the most sense.
However, in cases that require a formal investigation, the policy should include the legal definition of harassment and lay out a clear complaint procedure.
In Laskowska v. Marineland of Canada Inc., the tribunal set out a series of questions that help employers understand how their responses to alleged discrimination or harassment will be judged after the fact:
- Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident?
- Was there a suitable anti-discrimination/harassment policy?
- Was there a proper complaint mechanism in place? Was adequate training given to management and employees?
- Once an internal complaint was made, did the employer treat it seriously?
- Did it deal with the matter promptly and sensitively?
- Did it reasonably investigate and act?
- Did the employer provide a reasonable resolution in the circumstances?
- If the complainant chose to return to work, could the employer provide them with a healthy, discrimination-free work environment?
- Did it communicate its findings and actions to the complainant?
The above provide guidance for employers of the expectations for a policy and procedure. Creating an anti-harassment policy is much more than a check-the-box exercise — it’s necessary to demonstrate both preparedness and responsiveness.
Once an allegation or suspicion of discrimination or harassment has arisen, the employer, if challenged, will be judged on the following core elements:
- Did they treat the issue seriously?
- Did they act quickly but also sensitively?
- Did they investigate thoroughly?
- Did they provide a fair resolution?
- Did they advise the complainant of the results?
What’s the risk in not taking action?
In some cases, employers don’t do anything about suspicions or allegations of discrimination and harassment. That may be because they aren’t aware of their obligations, they don’t think a particular incident is serious enough to investigate, or they don’t really know how to deal with the issues. A number of court decisions suggest the price of employer inaction can be high:
- In Hamilton (City) v. Amalgamated Transit Union, Local 107, an arbitrator found that the city’s harassment investigator failed to interview key witnesses and, when the investigation was concluded, the city itself failed to take reasonable action in respect of the findings.
- In ElgertHome Hardware Stores Limited, the Alberta Court of Appeal substituted a punitive damages award of $75,000 for an even higher award made at trial after the employer dismissed an employee on the strength of a biased and incomplete investigation.
- In Boucher Wal-Mart Canada Corp., the Ontario Court of Appeal upheld a finding that Walmart should pay both punitive and aggravated damages to a constructively dismissed employee who was reprimanded after making a harassment complaint that was inadequately investigated and, as a result, found to be invalid.
Under both human rights and OHS legislation, employers have an obligation to address discrimination and harassment issues — even if no formal complaint is made. The way to do that is straightforward: act quickly; know when and how to use either an informal or formal investigation (for formal investigation appoint a qualified investigator); ensure that the formal investigation is thorough with a detailed report of facts and findings; advise the complainant of the outcome; and take reasonable action to address the behaviour in question.
By following these steps, employers can reduce their legal liability risks and, at the same time, foster a higher level of psychological and physical safety for their employees.
Bill Howatt is the Ottawa-based president of Howatt HR. Kelly VanBuskirk is a partner with Lawson Creamer in Saint John, N.B.