Employers must provide a safe working environment for employees. They are required to implement a system of internal responsibility to prevent and respond to workplace harassment and violence claims. As part of this, employers have a duty to investigate workplace harassment.
We recently reported on the definition of “workplace harassment” under the Occupational Health and Safety Act 1990 (Act) and the circumstances that trigger the employer’s duty to investigate workplace harassment. We explained that employers have a duty to investigate both incidents and complaints of workplace harassment.
This article looks at the conduct of an investigation into workplace harassment.
What does the Act say?
Not much! Under section 32.0.7 of the Act, employers must ensure that an investigation is conducted into incidents and complaints of workplace harassment “that is appropriate in the circumstances”.
It also states that the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, must be informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.
What is the Code of Practice?
According to Part III.1 of the Act, a code approved by the Ontario Minister of Labour may be followed to comply with a legal requirement specified in the approval.
The Code of Practice to Address Workplace Harassment (Code of Practice) is a code approved by the Minister for use at all workplaces to which the Act applies. Compliance with the practices set out in this Code of Practice is one way in which employers can meet the legal requirements specified under various sections of the Act, including those relevant for this article, section 32.0.7 which sets out employers’ duties relating to workplace harassment.
What does the Code of Practice tell us about the conduct of workplace harassment investigations?
Part III of the Code of Practice relates to the employer’s duties concerning workplace harassment.
If employers comply with all of the practices set out in Part III of the Code of Practice, then they are deemed to comply with section 32.0.7(1). Failure to comply with all or part of the Code of Practice may not be a breach of the Act because the Code of Practice is just one way in which employers can meet the legal requirements.
A summary of the practices concerning workplace harassment investigations is set out below.
According to the Code of Practice, an investigation needs to be completed within 90 calendar days unless there are extenuating circumstances warranting a longer investigation, such as more than five witnesses or a key witness being unavailable due to illness.
The person conducting the investigation on behalf of the employer must be able to conduct an objective investigation. As such, they must not be the alleged harasser or under their direct control.
The person conducting the investigation needs to complete a range of steps, including:
- The investigator must ensure the investigation is kept confidential and identifying information is not disclosed unless necessary to conduct the investigation or as required by law.
- The investigator needs to interview the alleged victim and the alleged harasser or harassers. However, if the alleged harasser is not a worker of the employer, the investigator must make reasonable efforts to interview them if they are known to the employer.
- The alleged harasser must be given the opportunity to respond to the allegations raised by the alleged victim. In some circumstances, the alleged victim should be given a reasonable opportunity to reply.
- The investigator must separately interview any relevant witnesses employed by the employer and must make reasonable efforts to interview those who are not employed by the employer.
- The investigator must collect and review any relevant documents.
- The investigator must take appropriate notes and statements during interviews.
- The investigator must prepare a written report summarizing the steps taken during the investigation, the complaint, the allegations of the alleged victim, the response from the alleged harasser, the evidence of any witnesses and the evidence gathered. The report must set out findings of fact and come to a conclusion about whether workplace harassment was found or not. The report must be provided to the employer or supervisor to take appropriate action.
Results of the investigation
Once this report has been prepared and provided to the employer and the investigation has been concluded, according to the Code of Practice, the employer has 10 calendar days to communicate the results of the investigation, in writing, to the alleged victim and the alleged harasser, if they are a worker of the employer. The results are a summary of the findings of the investigation.
The employer has the same timeframe to communicate any corrective action (taken or to be taken), if any, in writing, to the alleged victim and the alleged harasser, if they are a worker of the employer. This must indicate what steps the employer has taken or will take to prevent a similar incident of workplace harassment if workplace harassment was found.
Review of the workplace harassment program
Finally, for an employer to be deemed to have met the requirements of the Act in respect of workplace harassment investigations, the Code of Practice requires employers to ensure its workplace harassment program is reviewed annually or when any gaps or deficiencies in its program are identified as a result of an investigation.
Contact Haynes Law Firm in Toronto for Guidance on Maintaining a Harassment-Free Workplace
Haynes Law Firm, a boutique Toronto employment law firm, assists employers in managing and maintaining safe workplace conditions for employees. Paulette Haynes and her employment law professionals work with employers to review, develop, and amend workplace policies concerning workplace violence and harassment to ensure compliance with the law. Employers that regularly update policies and practices to reflect legislative changes create a safer work environment for employees and staff and minimize the likelihood of legal claims relating to discrimination and constructive dismissal. To discuss how Haynes Law Firm can assist your organization, please contact us online or call us at 416.593.2731.