Question: What are the legally safe alternatives to placing an accused harasser on paid leave while a complaint is being investigated? Should the individual be in the workplace at all?
Answer: Employers are responsible for dealing effectively, quickly and fairly with claims involving workplace harassment. It is prudent for every employer to implement workplace policies and procedures for making inquiries into allegations of workplace harassment since these types of investigations are often scrutinized by the courts.
One common procedure for employers is to remove the accused harasser from the workplace during an investigation in order to mitigate any escalation or further complications.
An employer’s power to remove the accused harasser from the workplace stems from the 2004 Supreme Court of Canada decision Cabiakman c. Industrielle Alliance, cie d’assurance sur la vie.
In this case, the court affirmed that it is an integral part of any employment contract to suspend employees for administrative reasons because of acts of which they have been accused.
This power, however, is limited and must be exercised in accordance with the following requirements:
• The action taken must be necessary to protect legitimate business interests.
• The employer must be guided by good faith and the duty to act fairly in deciding to impose an administrative suspension.
• The temporary interruption of the employee’s performance of work must be imposed for a relatively short period that is or can be fixed, or else it would be little different from a resignation or dismissal.
• The suspension must — other than in exceptional circumstances that do not apply here — be with pay.
If an employer opts not to place an accused harasser on administrative leave and instead allows the accused harasser to continue to work, the employer runs the risk of complicating the investigation.
The complainant and witnesses required for the investigation may not feel they can be forthright in their interviews when the accused harasser is just down the hall.
Further, there may be a perception the employer does not take the complaint seriously if operations remain status quo.
There is the risk that employees will feel as though their safety is threatened by having to immediately face the accused harasser during the investigation.
Since investigations often occur promptly after a complaint is received, tensions are often higher and employees may fear escalation or retaliation from the accused harasser or other co-workers if he is not removed.
If employers are unable to put the alleged harasser on administrative leave or determine there is no risk to the investigation, nor risk of retaliation, the following practices may be implemented as an alternative to an administrative suspension:
• Remove the complainant from the harassing environment.
• Place the accused harasser on a different shift schedule.
• Prohibit communication between the accused harasser and complainant.
• Move the alleged harasser to another workstation or work project.
Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or firstname.lastname@example.org.
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