You start hearing rumors from around the office. Nothing concrete, but you get the sense that one of your managers may not be behaving appropriately. You’ve heard them make the odd joke before – nothing that you would be concerned about, but not something that you would rush home to repeat to your kids, either.
Now, though, those rumors are picking up steam. Times have changed, and you’re concerned that this employee’s behaviour is not appropriate for today’s workplace. You’ve thought that you need to put some sort of training in place, but you’ve been too busy trying to meet demand, and quite frankly it wasn’t on top of the priority list.
Then things officially hit the fan. A young employee comes to your office visibly distraught stating that this same employee has harassed them and has made them feel incredibly uncomfortable. They are leaving until the matter has been resolved, and they threaten to seek legal counsel or go to the Human Rights Tribunal if nothing is done.
What’s your next move?
A Primer On Harassment Laws
Harassment complaints are undeniably scary for employers. If you’ve never dealt with one before, it highlights a vulnerability in your workplace. An employee you may have had tremendous faith in has now been accused of doing something you had thought unspeakable, and you know that it’s your responsibility to get to the bottom of things. The trouble is that you have no idea where to start.
The law is quite clear. The Occupational Health and Safety Act (the “Act”) was amended in 2015 to include workplace sexual harassment under the previously-implemented category of workplace harassment. It defines workplace sexual harassment as:
- engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
- making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; (“harcèlement sexuel au travail”)
The law has further requirements in the case of both workplace harassment and violence as well as workplace sexual harassment. It requires employers to:
- Have a written policy with respect to both that’s reviewed regularly (at least annually) and displayed within the workplace;
- Have a program to address harassment and violence, including how to seek help, how to report incidents, and how incidents will be dealt with;
- Assess risks of violence and harassment within the workplace;
- Protect employees when there is a known threat of domestic violence that may endanger them; and,
- Conduct an investigation “into incidents and complaints of workplace harassment that is appropriate in the circumstances.”
In short, this means that employers cannot put harassment on the back burner. They need to take it seriously, which means having a policy in place, training employees on that policy, and having a clear procedure for dealing with harassment complaints as they arise without delay. So what does ‘dealing with those complaints’ look like? The answer may be a workplace investigation.
What Do Investigations Look Like?
The law requires employers to conduct an investigation that is “appropriate in the circumstances.” For someone who tells an inappropriate joke in an isolated incident and then apologizes quickly, it’s unlikely that the incident will need to be handled by any external third party. Yet, if the complaint is simply beyond your scope of experience, or if there’s nobody to investigate who’s not at arm’s length from the parties, it may be time to bring in an external investigator.
Workplace investigators are trained and experienced professionals (many of them lawyers themselves) who know how to get to the bottom of the situation and deduce what really happened. They’ll interview the parties themselves, along with any witnesses, and will go through the evidence to determine who they believe to be giving the most truthful account of the events.
The most important part of any workplace investigation is that it’s balanced and impartial. This is why external investigators can be necessary – an investigator with a close relationship to one or both parties cannot be impartial. They are also careful not to ambush the accused – and instead will give them time to collect their thoughts, and respond thoroughly to any of the allegations against them.
Once the investigators have reviewed everything, they will come back to you with a full and comprehensive report. The law does not require you to share this report with anyone – not the complainant and not the accused – but you are required to share the ultimate results of the investigation and any discipline taken. The report may recommend terminating the accused’s employment, or it may recommend other actions, and then ultimately the choice is yours as to how to proceed.
As an employer, the most dangerous thing that you could do in these instances is nothing. Do not keep your head in the sand, no matter how unpleasant the air may be. A single complaint could suggest a more serious problem lurking right under your nose, and taking quick action and ensuring your policies are in place can help protect the workplace from serious risk.
If you are facing allegations and are not sure where to turn, we’re here to help. Our employment lawyers have great working relationships with workplace investigators, and while we don’t get involved in the process directly we are happy to be your guides at every turn. Don’t panic; give us a call instead. Contact us today to set up a consultation.