Employers must provide a safe working environment for employees. They must 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.
This article looks at the employer’s duty to investigate workplace harassment and the types of scenarios that trigger this duty.
What is workplace harassment?
Ontario’s Occupational Health and Safety Act 1990 (Act) defines “workplace harassment” as:
engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.
Workplace harassment is also defined to include “sexual harassment,” which is a similar course of vexatious comment or conduct, but where it is because of sex, sexual orientation, gender identity or gender expression. It also includes making a sexual solicitation or advance in circumstances where the person doing so is in a position to grant or deny a benefit to the worker, and the person knows or ought reasonably to know that the advance is unwelcome.
What is the duty to investigate workplace harassment?
Under section 32.0.7 of the Act, employers must ensure that an investigation is conducted into incidents and complaints of workplace harassment appropriate in the circumstances.
Such an investigation should:
- Be undertaken promptly – unless there are compelling reasons why a longer investigation is needed, it should be completed as soon as possible, within 90 days or less.
- Be objective – the person conducting the investigation cannot be involved in the incident and should be independent of the alleged harasser.
- Maintain confidentiality – information about the incident or complaint should not be disclosed unless necessary to protect workers or as needed for the investigation or as required by law.
- Be thorough – as appropriate in the circumstances, the alleged victim, alleged harasser and any witnesses should be interviewed.
The employer must ensure that the alleged victim and the alleged harasser are informed in writing of the investigation results and of any corrective action taken or will be taken as a result of the investigation.
When does an employer need to investigate workplace harassment?
An employer has a duty to investigate both incidents and complaints of workplace harassment. This means that the duty does not only apply where the employer has received a formal complaint from the alleged victim.
An employer needs to conduct an investigation when:
- the employer or a supervisor becomes aware of an incident of workplace harassment by the alleged victim or another worker; or
- a written or verbal complaint of workplace harassment is made to the employer, a supervisor or the employer’s designated person.
Some examples of scenarios that might trigger the duty to investigate workplace harassment
The Ontario Government has issued guidance containing some fictional scenarios that would trigger the employer’s duty to investigate workplace harassment. We take a look at these below.
A new employee at a large construction company reports that several of the other workers at work refuse to use the worker’s name instead of calling the worker derogatory names. In addition, they isolate the worker from work activities. The worker approaches the site supervisor to report workplace harassment.
The use of derogatory names may constitute a course of vexatious comment that ought reasonably to be known to be unwelcome. The employee has reported this to the supervisor, which constitutes a complaint that the employer is required to investigate.
If the supervisor was not involved in the alleged conduct, the supervisor would be able to investigate by interviewing the alleged harassers, the alleged victim and any other witnesses.
Comments about appearance
The manager of a pharmacy location begins to make comments about how attractive the new assistant looks in particular clothing. The assistant feels uncomfortable with these comments and tells a co-worker. The co-worker follows the employer’s program and notifies head office to report the incident.
It may be possible that repeated comments about someone’s physical appearance constitute sexual harassment. Given that the employer has become aware of the incident by being notified by one of the alleged victim’s co-workers, the employer is required to investigate.
The manager who commented cannot conduct a fair and impartial investigation. Someone else, such as a manager from the head office or a person from the human resources department, will need to investigate the circumstances appropriately.
Inappropriate e-mails and dinner invites
A worker at a retail store contacts the company’s human resources department, stating that the worker feels harassed by the supervisor. The worker says that the area supervisor has sent the worker inappropriate e-mails and repeatedly invited the worker out for dinner even after the worker continually declined.
Repeated asking for dates and not taking “no” for an answer can constitute sexual harassment. The employee has lodged a complaint of workplace harassment with the employer, triggering the employer’s duty to investigate.
Similar to the pharmacy scenario above, the supervisor cannot investigate because the complaint has been made in relation to their conduct. The employer’s human resources department should complete the 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.