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When an employer receives a complaint or becomes aware of an incident of workplace harassment, it must be investigated. But what happens when the complaint is made against a member of the employer’s family, who just so happens to be a co-worker?
Before Bill 132 enshrined the employer’s obligation to investigate complaints of workplace harassment, the issue of an employer’s failure to address harassment often arose in constructive dismissal cases. In Stamos v. Annuity Research & Marketing Service Ltd., the plaintiff successfully claimed that she was constructively dismissed from her employment because of the inappropriate conduct she faced at the hands of the employer’s uncle, who would have intense outbursts in meetings, yell at the plaintiff and barge into her office unannounced. When she complained about this to her employer, he was quite forgiving of his uncle’s conduct. He claimed that his uncle made the workplace more “professional” and attributed some of his inappropriate behaviour to his uncle’s “background.” The judge found that the employer failed to ensure that the workplace was “conducive to the well-being of its employees” – a pre-Bill 132 version of a finding that an employer failed to investigate a complaint of workplace harassment.
The creation of a legislated obligation to investigate workplace harassment under the Occupational Health and Safety Act does not diminish an employers’ disinclination to investigating a family member – a problem that is particularly germane to small, family-operated businesses. In a recent human rights case, the employer, a restaurant owner, was found liable for failing to investigate a number of complaints of harassment raised by an employee against the restaurant’s kitchen manager. The kitchen manager just so happened to be the employer’s father. When the employee brought these complaints to the attention of the restaurant owner, his response conveyed his reluctance to speak to confront a member of his own family: “What am I supposed to do? He’s my dad.”
Indeed, speaking to one’s father about why he frequently referred to an employee’s breasts, or talked about having sex with customers, would be quite an uncomfortable conversation. While such discomfort prevented the employee’s complaints from being investigated, it did not vitiate the employer’s obligation to do so.
Investigations are not easy. They are especially difficult when the investigator is related to the respondent. In these cases, it may be helpful to hire an external investigator to ensure that the investigation is conducted in an impartial manner. If that is not possible, here are four strategies that an internal investigator can use to overcome this challenge:
- Inform the respondent of your obligation to investigate all complaints and incidents of harassment – it is not your individual choice to do so. It is required by law.
- Remind the respondent of the obligation to maintain confidentiality during the investigation, which includes maintaining confidentiality within the family if the parties to the investigation are family members.
- Explain that you are investigating an incident and not trying to assess their “character.” You are trying to determine if something happened or not.
- Outline the range of disciplinary consequences for being found to have committed an act of workplace harassment to rid employees of the assumption that if the respondent is found to have committed harassment they will be immediately terminated.
Investigating a family member likely will never feel comfortable. Hopefully, by using these strategies, it will never feel impossible.