How should an employer treat a harassment complaint about unwanted comments when it knows the harasser wasn’t intending to offend, but thought he was being nice? What if the employer is satisfied the harasser got the message, but the complainant isn’t happy with the solution?
This is not an unusual situation. On many occasions, complaints of harassment relate less to evil intent than to misguided behaviour. Sometimes, that behaviour is based upon outdated and sexist views that are entirely unacceptable in today’s society.
While the conduct is inappropriate and must be stopped, it is often possible to address the situation by providing the offender with training so he understands why his conduct is unacceptable.
To begin with, as readers will already know, any allegation of harassment must be taken seriously and investigated properly. In most cases, this will require, at the very least, that the complainant and “accused” be interviewed.
Ultimately, the person tasked with conducting the investigation will have to reach a conclusion as to whether the complaint was substantiated.
In some cases, the finding might be there was inappropriate conduct or comments, but the offender did so out of ignorance and without intending to cause harm.
In those cases, depending upon the nature of the relationship, the nature of the workplace and the comments that have been made, it may be possible to repair the relationship by providing the offender with appropriate training and also allowing the parties a chance to discuss the matter and repair their working relationship.
Discipline may or may not be warranted, depending upon a number of factors.
Ultimately, a complainant is not entitled to determine the discipline that is imposed upon the offender, if any. She is also not entitled to be provided with the contents or details of the investigation report.
Rather, she is entitled to know the conclusion that was reached, being whether the complaint was found to have merit or not. The employer does not have to ensure the complainant is “happy” with the solution, though it must ensure it acts reasonably and in good faith to address the issues and provide a safe working environment.
Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is the author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at firstname.lastname@example.org.
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