When is there a need to investigate?

By: Dilina Lallani

Employers must ensure their employees are treated fairly in a safe and healthy environment. This work environment includes one free from harassment.

Ontario’s Occupational Health and Safety Act set out legal requirements for employers. Employers have a duty to protect workers from workplace harassment by investigating incidents and complaints of workplace harassment that are appropriate in the circumstances. [1]

Employers in Ontario are required to create a program with company policies related to workplace harassment that outlines the reporting process, investigative process, information on how the investigator will gather information but not disclose information unless necessary, and how the worker will be informed of the outcomes of the investigation. [2] The employer is required to conduct a workplace investigation of harassment if the alleged harasser is an employee or a non-employee, including a customer, client, or patient.

The Canada Labour Code addresses federally regulated employers, including employment connected to federal work, corporations that perform duties on behalf of the Government of Canada, and agents of Her Majesty in a province. [3] Under this Code, an employer is also under a duty to investigate cases of harassment. [4]

Behaviours of workplace harassment may include:

· Offensive or intimidating comments or jokes

· Bullying or aggressive behaviour

· Displaying or circulating offensive pictures or materials

· Sexual harassment

· Inappropriate staring

· Isolating or making fun of a worker because of gender

If you believe you are experiencing workplace harassment, you have the right to bring about a complaint for investigation.

What is required in a complaint form?

Typically, when filling out a complaint of workplace harassment, a standard form in Ontario will include sections to provide the name and contact person of the person who experienced the workplace harassment and the alleged harasser. The complainant will have the opportunity to share details of the alleged harassment, including parties involved and witnesses; location, date, and time of events; behaviors and words used; and any other additional information. Relevant documents can be shared, including emails, photographs, and physical evidence.

Note that if even without a complaint form, the employer is required to conduct an investigation appropriate in the circumstances.

What is an appropriate investigation?

An investigation that is appropriate in the circumstances is conducted when:

· The employer or supervisor is made aware of an incident of harassment by the worker who experienced it or from a co-worker; or

· A written or verbal complaint of harassment is made to the employer, supervisor, or employer’s designated person

Workplace investigation

An investigation can be performed internally by an assigned person, supervisor, or manager or externally by a private investigator, human resources professional, or lawyer within 90 days. If the investigation is performed internally, the investigator will not be the alleged harasser nor a person under the control of the alleged harasser to avoid a conflict of interest.

The investigation process will involve

· Confidentiality and non-disclosure of identifying information unless necessary

· Investigators will gather relevant information from a number of parties. Interviews with the worker who has experienced the alleged harassment, the alleged harasser, and witnesses. Interviewees will be asked questions about the allegations, including what the person saw, heard, or experienced. The investigator will take notes on all interviews.

· The alleged harasser will be given an opportunity to respond to the allegations

· During the evidence collection stage, the investigator will compile and review relevant documents from the worker, alleged harasser, witnesses, and employer

· The investigator will create a written report outlining the steps of the investigation, the allegations, the alleged harasser’s response to the allegations, evidence provided by witnesses and documents, and a conclusion indicating a finding of harassment or not

Outcomes of an investigation

The employer must follow-up and communicate the results of the investigation report in writing to the person experiencing the alleged harassment within ten days of the conclusion of the investigation. If any corrective action is to be taken, the employer will communicate these actions to the worker and the harasser within this ten-day period.

Corrective actions will depend on the severity of the behaviour and may include:

· An apology

· Education

· Counselling

· Shift changes

· Suspension

· Job transfer

· Termination

· Training for everyone in the workplace, if the harassment is common

If the employer fails to investigate, perform a fair and proper investigation, or take appropriate disciplinary or corrective action, the worker may be entitled to sue for constructive dismissal. Constructive dismissal occurs when an employer unilaterally imposes substantial changes to a fundamental term of an employment contract that is to the worker’s disadvantage. If courts establish the presence of workplace harassment, the employer will be deemed to have breached an implied term of the contract to ensure a safe and healthy workplace environment. The worker has the right to treat these changes as termination of the contract and will be entitled to damages. Alternatively, the employer may be liable for a breach of the Human Rights Code if the employer knew about the harassment and failed to address it.

Other cases of possible unfair actions by employers, such as wage cuts, may not impose a duty on the employer to conduct a workplace investigation. Wage cuts are governed by the Employment Standards Act, which may entitle the worker to a claim of constructive dismissal. [5]

Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.

Sources

[1] Occupational Health and Safety Act, RSO 1990, c O.1, s. 32.0.7(1).

[2] Occupational Health and Safety Act, RSO 1990, c O.1, s. 32.0.6(2).

[3] Canada Labor Code, RSC 1985, c L-2, s.123(1).

[4] Canada Labor Code, RSC 1985, c L-2, s.125(1)(c).

[5] Employment Standards Act, 2000, SO 2000, c 41, s.56(1)(b).