What are an employer’s legal obligations when an employee complains of harassment that an investigation cannot prove or disprove?
Question: What are an employer’s legal obligations when an employee complains of harassment that an investigation cannot prove or disprove?
Answer: It is critical that employers understand their obligations when they receive a complaint or even have a suspicion that harassment is taking place in the workplace. As regular readers will know, when that occurs, there is a positive obligation to conduct an investigation. While the nature and scope of investigations can vary greatly, there is one important point that many overlook: it is a fundamental duty of an investigator to reach a conclusion as to whether or not harassment took place.
We often get the objection that the situation is a matter of credibility or a “he said/she said” scenario, with the implication being that it is impossible to figure out what happened. Simply put, that is not good enough. An investigator must reach a conclusion. That said, it is important to remember that this is not a criminal trial and the standard of proof is not “beyond a reasonable doubt.” Rather, the standard of proof is the civil standard, which is the balance of probabilities. In other words, is it more likely than not that there was harassment? Another way of putting it is that the standard is “50 per cent plus 1.”
In order to reach a conclusion, the investigator must assess all available evidence and consider whether the evidence of one witness is internally consistent and whether it is consistent with the other evidence that exists. The standard is not correctness, since it is impossible to know what actually happened, but that a reasonable effort was made to reach a conclusion that is defensible based upon the evidence and process. There is also an obligation to advise the parties of the conclusions reached in the investigation.
If the finding is that there was harassment, then the employer should consider whether discipline is required, as well as whether there should be training for any of the parties or for the broader workforce. Even if harassment is not found, there may be a finding that there was conduct or that there were relationship issues which require attention. In many cases, we are involved in investigations where the finding is that there was no behaviour that rose to the level of harassment, but there were personality issues or examples of poor management that required training.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Toronto. He can be reached at [email protected] or (416) 864-8500.