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In 2017, Rubin Thomlinson conducted the Workplace Bystander Survey to gather insight into workplace bystanders (individuals who personally witnessed, heard of, or heard about harassment and discrimination in their workplaces). One of the conclusions of the survey was that employers should consider workplace bystander action as one tool to close the gap between reported and under-reported incidents of workplace discrimination and harassment.1
One important bystander action is the ability for bystanders to make third-party complaints (i.e., complaints brought forward by a person who witnessed or heard about workplace harassment or discrimination). However, given that such complaints are not coming from the person who experienced the alleged harassment or discrimination, it is not always clear to employers what their obligations are with respect to third-party complaints.
Are employers required to investigate third-party complaints?
Employers are well advised, and in many cases obligated, to create policies that set out how they will investigate complaints of discrimination and harassment. In many workplaces, these policies require the employer to accept and resolve third-party complaints. This may be set out explicitly, for example, in a section that sets out the process for submitting, investigating, and resolving a third-party complaint.
Even if a policy does not contain such a section, the ability of a third-party to bring forward a complaint may be embedded in or inferred from other sections of the policy. For example, a policy may include indirect harassment or discrimination in its definitions of harassment and discrimination. Indirect harassment and discrimination include behaviours that are not directed at an individual, but the individual nonetheless finds such behaviours to be unwelcome (e.g., because they are offensive or create a toxic work environment). Additionally, a policy’s definition of complainant (i.e., an individual who can make a complaint under the policy) may be broad enough to include third-party complainants. Employees may also make a third-party complaint under the whistleblower provisions of their employer’s workplace policies.If a workplace policy is entirely silent on third-party complaints, employers may still have legal obligations to investigate third-party complaints.
In Ontario, for example, under the Occupational Health and Safety Act, an employer must ensure that an investigation is conducted into workplace harassment, whether a worker has formally or informally made a complaint, or the employer is otherwise aware of an incident (for example, the employer learned about it from a third party).2
Similarly, under the Ontario Human Rights Code, employers are obligated to establish and maintain workplaces that are free of discrimination and harassment. In Laskowska v. Marineland of Canada Inc.,3 the Ontario Human Rights Tribunal stated that employers have a duty to investigate complaints of discrimination and harassment as a means by which an employer can ensure that it is achieving its obligations to establish and maintain a workplace free of discrimination and harassment. As such, if an employer receives a complaint from a third-party that discrimination may be occurring in their workplace, they have a duty to investigate that complaint.
Accordingly, employers should be cautious not to dismiss third-party complaints on the basis that their workplace policies do not address this issue.
What if the targeted person doesn’t want to participate in the investigation?
In many instances, a third-party may make a complaint even though the targeted individual is unwilling or unable to do so, for example, because they are too vulnerable or afraid. In some instances, the targeted individual may not want to participate in an investigation at all.
The fact that the targeted individual does not want to participate, or even does not want the investigation to occur at all, does not mean that the investigation should not proceed. The duties of employers to investigate allegations of harassment and discrimination exist irrespective of whether or not the targeted individual wants to bring forward a complaint or participate in an investigation, or otherwise considers the matter resolved.
In an investigation into third-party complaint, an individual who was the subject of the alleged behaviour is not the “complainant” (i.e., the person who brought forward the allegations). Instead, they are, technically, a witness to the alleged incidents.
Evidentiary issues where the targeted person doesn’t want to participate
Where a targeted individual does not participate in an investigation, this may of course result in evidentiary issues – that is, without the targeted person’s evidence, there may be insufficient evidence to make a positive finding of fact. This is especially the case where the third-party only heard about the alleged incidents, and as such their evidence is hearsay.
Even if the targeted person does not want to participate, however, investigators should still make efforts to gather other evidence upon which they could base their findings, such as documentary evidence (e.g., emails, meeting notes, meeting recordings, text messages, etc., that document or relate to the incident) or the evidence of other witnesses.
If a third-party complaint is based on hearsay evidence, investigators should ensure that they make attempts to interview persons who may have first-hand knowledge of the incidents in question. This may include the person who told the third-party complainant about the incident.
It is possible that having gathered this evidence, the investigator will be able to provide sufficiently detailed allegations to the respondent to allow for a fair process. If the witness/documentary evidence is sufficiently credible, an investigator may also be able to make positive findings of fact even without the targeted person’s evidence.
1 Megan Forward, “Employers shouldn’t stand-by if they don’t want their employees to, and other lessons from RT’s Workplace Bystander Survey” (October 13, 2017), online (blog): RT’s Insights <https://rubinthomlinson.com/employers-shouldnt-stand-dont-want-employees-lessons-rts-workplace-bystander-survey/>
2 Government of Ontario, Understand the law on workplace violence and harassment (September 2016) (https://www.ontario.ca/page/understand-law-workplace-violence-and-harassment)
3Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII), <https://canlii.ca/t/1r7bh>
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