How far does the duty to investigate go for employers?
Question: Does an employer need to investigate an employee’s harassment complaint if the employee also complained to police and the police found no merit?
Answer: Yes, an employer does have an obligation to independently investigate a harassment complaint brought by an employee, even if the complaint was also brought to the police who found no merit in it.
Under most occupational health and safety legislation in Canada, employees have the right to be free from workplace harassment, and employers have a corresponding duty to protect employees from harassment and to investigate any threat to workplace health and safety caused by harassment. In addition, human rights legislation throughout Canada provides that employees have a right to be free from harassment on a prohibited ground of discrimination — which generally includes religion, creed, marital status, family status, sex, sexual orientation, gender identity, age, colour, ancestry, nationality, place of origin, and race. In unionized workplaces, these protections are also often found under the parties’ collective agreement.
As a result, there is an independent duty on employers to investigate any workplace harassment complaints which are brought forward to determine if they constitute a threat to workplace health and safety or constitute discriminatory harassment. A failure to do so can result in legal liability pursuant to occupational health and safety and/or human rights legislation, as well as other liabilities which may arise if harassment did occur (such as a claim for lost wages or damages for constructive dismissal).
It is also important to note that the standard for proving workplace harassment is the civil standard, meaning harassment can be found if it is proven on a balance of probabilities. This is a lower standard than exists in the criminal law world. The criminal harassment standard means the complaint must be proven beyond a reasonable doubt. Therefore, even if the police find no merit in a criminal harassment claim, it is still possible that workplace harassment pursuant to occupational health and safety legislation, human rights legislation, or the common law did occur. As such, if an employee brings a workplace harassment complaint, employers should dutifully investigate the complaint regardless if the complaint was also brought to other sources. Doing so gives the employer the opportunity to address any risks to workplace safety and to counter the potential liabilities that may flow from those risks.
