Ignore harassment at your own risk

Increased focus on workplace harassment and bullying by lawmakers and society in general means increased pressure on employers to deal with it properly and fairly

In June 2010, Bill 168 came into force and amended Ontario’s Occupational Health and Safety Act (OHSA). With this amendment in force, Ontario became the third province in Canada to enact protection for employees against violence and harassment in the workplace and, in turn, placed an increased obligation on employers to provide a workplace that is free from harassment and violence. Given amendments to the legislation and increased media attention on bullying, employers are dealing increasingly with complaints of workplace harassment and bullying, requiring them to take appropriate steps to effectively deal with these complaints.

As employers continue to develop and follow procedures to deal with complaints of workplace harassment and bullying, we continue to see the law in this area develop. For example, recently, a precedent-setting decision of a tribunal assembled by McMaster University in Hamilton to hear serious allegations of harassment in the workplace demonstrated that harassment complaints have traction and can attract serious consequences. In this case, the McMaster tribunal handed down sanctions of lengthy suspensions without pay, benefits, privileges or access to the university’s premises during the suspensions and removal from positions of authority.

Manner of investigation important

It is has also been further clarified by the case law that the manner in which investigations into harassment are conducted is important. Employers may face increased risk with decisions made based on faulty investigations, and therefore must be very careful to ensure a proper investigation process is followed and documented. With respect to investigations, courts have also emphasized that there is a dramatic benefit to hiring an external workplace investigator. Finally, it has been clarified in Ontario that a decision to terminate an employee because he has brought forward a harassment complaint can constitute reprisal and may attract the consequences of section 50 of the OHSA — which specifically prohibits reprisals against employees who exercise their rights under the act.

While the above examples provide a glimpse into the developments in the area of bullying and harassment in Ontario, in practice we find that two key areas of focus for employers in effectively dealing with harassment and bullying in the workplace are policies and the question of what to do with the results of an investigation. Under the OHSA, for example, employers are required to, among other things, implement policies that prohibit workplace harassment and investigate complaints when they arise. However, the legislation does not contain comprehensive guidance on how to put together a policy that is useful to the organization or how to deal with a finding of workplace harassment and bullying as a result of the investigation.

The OHSA requires that employers with more than five employees prepare a written policy with respect to workplace harassment and review the policy as often as is necessary, but at least annually. Employers are also required to develop and maintain a program to implement the policy. The program must include — and the policy should therefore explicitly outline — measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor, and outline how the employer will investigate and deal with incidents and complaints of workplace harassment. It is also advisable for the policy to include a definition of harassment which the organization will use as the standard for determining if complaints that arise constitute harassment under the policy, as well as a definition of the workplace that includes not only the office space in which employees typically engage in work-related duties but also includes off-site places where work may be performed as well as work events.

Quick decision must be made once complaint is received

Upon receipt of a complaint, or of information which the employer determines is necessary to review, the employer must determine how it will respond. The first tool in this assessment will be the policy. However, every complaint of harassment is likely to involve competing factors and circumstances, meaning that a customized approach will be required in most cases. Therefore, it is advisable for employers to ensure there is sufficient discretion built into the policy so as to reserve flexibility to allow the organization to deal with the uniqueness of each situation. For example, the employer should ensure its policy provides discretion in order to determine whether a formal investigation is necessary in the circumstances. If an incident is relatively minor or can be attributed to a misunderstanding or other legitimate reason — such as performance management — a formal investigation may not be required. On the other hand, a written complaint addressing more serious conduct or a situation which has already escalated between the parties may require a more formal investigation.

Employers should also include in the organization’s policy guidelines which will assist employees in determining their own expectations and also equip employees with the tools required to attempt to address incidents in the workplace themselves. For example, employees can be encouraged to directly approach someone in the workplace to advise that there is certain behavior that is unwelcome with the hope that the issue can be resolved without the need for any further process.

Allow for discretion and flexibility

Employers should also ensure sufficient discretion is built into the policy so there is flexibility in determining how to best deal with disciplinary issues as a result of the findings of the investigation. If an investigation report contains findings that harassment has occurred that is in violation of the policy or law, the employer must take immediate steps to address the issue in order to avoid the potential of facing liability for failing to provide a safe work environment. However, terminating an employee who is found to have violated the policy or law may not be required and may not be the only option in all circumstances.

When deciding on the appropriate internal mechanism to deal with a finding of workplace harassment, there are a variety of factors that should be considered. For example, the severity of the act or acts of harassment, whether there are mitigating factors involved in the employee’s behavior, whether the employee has engaged in previous acts of harassment in the workplace, and the employee’s length of service. The policy should give the employer the ability to choose the best option in the circumstances. While by no means exhaustive, the following are alternatives to termination that may be considered where appropriate in order to rectify the behavior and restore the workplace:

• Disciplinary letter
• An apology to the complainant from the offender
• Training or coaching to educate the offender
• Suspension with or without pay
• Mediation or conferences
• Support, for example sensitivity training
• Last chance agreements

Given the legal implications of disciplinary measures taken in the workplace, it is advisable that employers consider their potential liability before making decisions in this regard.

Developing useful policies, conducting proper workplace investigations into allegations of harassment and subsequently dealing with the findings can be complex and challenging. As a result, it is important that employers continue to revisit policies and processes regularly in light of developments in the law in order to most effectively manage harassment and bullying in the workplace.

Sarah Vokey is an employment lawyer with Robinson Heeney LLP in Toronto, focusing exclusively on representing employers and employees in all areas of employment law as well as conducting workplace investigations. She can be reached at (416) 646-5169 or [email protected]

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