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Ask any human rights professional and they’ll likely tell you that one of the most difficult topics that come up in their practice is workplace violence and harassment. Employment lawyers will usually agree. The issue has been made all the more complicated since the advent of provisions of the Occupational Health and Safety Act (OHSA) that impose all sorts of obligations on an employer.
Given the complexity of the legal framework, not to mention that of the human dynamics involved, it’s not surprising that this was identified as an area where “HR Professionals Get It Wrong” by lawyers who support businesses in managing their human resources. This is certainly one of the areas where my clients often struggle.
Burying your head in the sand
If they don’t complain, it didn’t happen. As a general rule, this is not the best HR practice. In the case of workplace violence and harassment, it can be a recipe for disaster. The OHSA requires employers to address incidents of workplace violence and harassment. If an employer becomes aware of circumstances that may constitute workplace violence or harassment under the Act, they are required to investigate and take whatever remedial action is necessary. The fact that no formal complaint has been lodged does not absolve an employer of their obligations under OHSA.
Not disclosing particulars of the complaint
Once a complaint has been made, whether verbally or in writing, the OHSA imposes a duty on an employer to investigate the complaint. Typically, you will begin by interviewing the complainant in order to get as much detail as possible from them about the nature of the complaint as well as details of the impugned conduct.
Armed with as much detail as possible, you will then sit down with the person who is the subject of the complaint (aka the respondent) to get their side of the story. Often, in the name of maintaining the confidentiality of the complainant or other witnesses, only vague facts will be shared with the respondent. Courts are being increasingly circumspect and will require employers to treat investigations in the same manner as a court would treat a case – the respondent has the right to know particulars of all of the allegations made against him or her in order to give them a fair opportunity to respond.
Courts are inclined to find that investigations have been faulty where a respondent is given only vague details of the allegations, or not given sufficient detail to allow him or her to meaningfully respond. In addition, where the investigation ultimately leads to a termination of employment, whether with or without cause, courts are also inclined to award additional damages.
Not interviewing or re-interviewing
Although it has become standard practice to interview the complainant first, followed by the respondent, and then any witnesses one or the other (or both) have alluded to in their interviews, this approach is by no means required. That being said, there is an expectation that anyone having knowledge of the matter will be interviewed as part of the investigation. Similarly, where additional or new information arises as a result of witness interviews, there is an expectation that the complainant and/or the respondent (as the circumstances warrant) will have the opportunity to address that information by way of a second interview. This ensures that the investigator has all of the information necessary to draw conclusions and it also allows the interested parties (i.e. the complainant and respondent) an opportunity to speak to all relevant issues in the investigation.
Taking too long
Justice delayed is justice denied. This age-old adage applies with equal force in the context of workplace violence and harassment. Further, delays have a number of implications for employers, not least of which is limiting the ability of the employer to rely on the results of the investigation in any subsequent workplace action. Because, if the matter was that serious…why did it take you so long to start/conduct/complete the investigation?
So often, the best prophylactic against workplace issues is training. Raising awareness about the obligations under the OHSA as well as policies prohibiting workplace violence and harassment is the best way to guarantee, at a minimum, that employees know their employer’s expectations, what recourse they have and the process that will take place should they raise concerns.
Related blogs in this series:
- # 5 Forgetting that common law principles also apply
- #4 Discriminatory grounds such as family status, age, marital status, etc. that deal with the duty to accommodate
- #3 Contracts and Employment Agreements
- #2 Mental health or physical disabilities that deal with the duty to accommodate
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 3)
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 2)
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice
- Where HR Professionals Get It Wrong: Employment Counsels’ Collective Musings
About the Author: Toronto Employment Lawyer Adrian Ishak’s practice focuses on all aspects of employment law including employee relations, terminations, wrongful dismissals, employment contracts, and employment policies. He provides strategic counselling on a number of human resources, privacy and human rights issues. With a joint Ontario and Québec call and with experience in both jurisdictions, Adrian guides his clients through employment standards matters, pay and employment equity, and human rights obligations in Canadian common law and Québec’s civil law jurisdiction. Adrian represents clients in both English and French.