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Harassment complaint? Don’t panic

A fair investigation is important not just because it’s a legal obligation, but it could also expose false complaints
Employment law
The evidence showed FIO Automotive made efforts to remedy the circumstances by meeting with the worker and moving him to different groups, but trouble seemed to follow the worker. Google Street View

By Jeffrey R. Smith

Workplace harassment is something employers need to take seriously. A failure to do so could result in not only potential legal problems from harassed employees and health and safety authorities, but also for its negative effects on workplace morale.

There are many reasons — legal and otherwise — for employers to take a proactive approach on fighting workplace harassment and also to respond to it quickly and effectively. However, not every time an employee cries harassment means the employer should panic — it’s possible the problem could be the employee.

Employers have a duty to sufficiently and fairly investigate any harassment claim, there’s no doubt about that. But the investigation may not actually turn up an instance of harassment. In such circumstances, the employer doesn’t have an obligation to change anything about the situation — except maybe decide whether it needs to take action against the complaining employee.

In a recent Ontario case, a worker complained to his employer’s human resources department and upper management about his supervisor. Apparently, the worker had failed to do expected paperwork and had also shown up late for work. In both cases, the worker accused the supervisor of shouting at him. After management met with the worker, he then complained that he was being scrutinized too much and was being targeted.

The worker was then put in another work group with a different supervisor, but soon encountered similar problems. The worker was late again and also caught not filling out required paperwork, which led to a confrontation with the new supervisor. The worker complained that this supervisor swore at him and he informed the employer that he had contacted the government and seen a lawyer about his perceived mistreatment at work.

The employer investigated and found that the second supervisor did in fact swear at the worker, but the worker had also sworn back at the supervisor. It determined this incident didn’t constitute harassment and noted the worker now had problems with two different supervisors within a short period of time.

Eventually, the worker left the company through a mutual agreement, but the worker then claimed he was terminated for his harassment complaints.

The worker’s claim was dismissed by the Ontario Labour Relations Board, which found the employer properly investigated the complaints and the evidence showed it was the worker who was the problem — multiple instances of lateness, confrontations with supervisors, and unsatisfactory performance.

The evidence showed the employer made efforts to remedy the circumstances by meeting with the worker and moving him to different groups, but trouble seemed to follow the worker: see Smith v. FIO Automotive, 2017 CarswellOnt 13278 (Ont. Lab. Rel. Bd.).

No employer or human resources representative wants to hear a harassment complaint. But if such a complaint is properly investigated and found to be without merit, there’s no reason the employer needs to worry about making changes in the workplace. Even the most proactive and harassment-free workplace isn’t immune to complaints from someone who may be difficult to get along with or has an agenda.

If a workplace harassment complaint unexpectedly comes in, it’s not necessarily a reason to panic. A good investigation will reveal the problem — which may not in fact be harassment at all.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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