How to Handle Workplace Harassment Complaints

Many employees spend a significant portion of their working time collaborating, coordinating, or simply chatting with co-workers, be it virtually or in person. When things go smoothly, this can lead to productive work, good morale, and friendly relationships. Unfortunately, from time to time, conflict between co-workers can arise and complaints of harassment or sexual harassment might be made.

What steps do employers have to take when faced with such complaints? What about the affected employees? In this blog post, we discuss employers' and employees' rights and obligations when dealing with a complaint of workplace harassment or sexual harassment.

Duty to investigate – when does it arise?

The first step an employer should take upon receiving a complaint is to consider whether it triggers the employer's duty to investigate.

Under the Occupational Health and Safety Act ("OHSA") an employer has a duty to ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances. The OHSA defines "workplace harassment" to broadly include "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome" and includes workplace sexual harassment.

Similarly, the Ontario Human Rights Code, as interpreted by the Human Rights Tribunal, imposes a duty on employers to investigate instances of discriminatory harassment in the workplace.

With these statutory requirements in mind, employers would do well to seriously consider whether complaints or incidents in the workplace amount to harassment. Even if the word itself is not used, allegations of bullying, improper comments and jokes, or unwelcome conduct all may fall within the definition of harassment and trigger the duty to investigate.

Duty to investigate – what does it entail?

Once it is determined that the duty to investigate is triggered, the next step is to consider how to investigate. While the legislation imposes a duty to investigate, employers have some flexibility to determine an investigation process that is appropriate in the circumstances.

Relevant considerations may include:

  • The severity of the allegations
    • Is it a on-off incident or ongoing? How severe or offensive is the alleged misconduct?
  • The number of parties involved
    • Is it an issue between two employees? Or multiple?
  • The role of the parties involved
    • Are any parties in leadership roles? Do the complaints involve the company's human resources team?

In some cases, an informal investigation may be the best option to quickly and efficiently address the complaint. In other cases, a formal investigation with an external investigator may be appropriate, for example, where the allegations are severe, voluminous or involve employees who may make investigating internally difficult (e.g. members of the human resources team).

Either way, employers should settle on an investigation process without too much delay. Not only is it important to investigate workplace complaints while memories are fresh, dragging along an investigation can lead employees to feel disgruntled and that the matter may not be taken seriously enough.

Duty to investigate – what to do in the interim?

A complaint is received, a process for investigating is determined, but before the investigation begins a decision should be made about what to do with the employee who made the complaint (the "complainant") and the employee alleged to have engaged in the misconduct (the "respondent") during the investigation. In some cases, if the complaint is minor or the parties do not regularly work together, it may be business as usual. It can be trickier, however, where the allegations are severe or the parties work in close contact with one another.

In the ordinary course, the complainant should not suffer any adverse consequences as a result of having made the complaint. They should be able to continue to work as per normal and receive their normal remuneration, without fear of retaliation or reprisal. From time to time, the complainant, however, may request accommodations. For example, a day or two off work following the incident or a short-term medical leave of absence. Where the request is reasonable and in line with the employer's normal practices, employers would do well to consider it. On the flipside, there is no obligation to provide more favourable treatment to a complainant simply as a result of a complaint having been made.

On the respondent side, a primary consideration is typically whether the respondent should be separated (either physically or virtually) from the complainant for the duration of the investigation. Whether this is necessary will depend on the circumstances of the complaint, including the severity of the allegations. Where possible, the least punitive measure possible should be adopted, as the allegations will not yet have been substantiated. This could include shifting the employee's work hours, requiring they work from home, or placing them on a paid administrative leave.

Duty to cooperate – do employees have to participate?

The investigation is up and running. But then one of the parties suddenly refuses to participate. What then? Can an employer force the employee to participate? In short, it depends.

Absent any special circumstances, an employer can usually require that a respondent cooperate in a workplace investigation. If the respondent refuses, it may be considered insubordination which can give rise to disciplinary consequences.

It is less common, but perhaps trickier when a complainant refuses to cooperate. The duty to investigate is not relieved as a result of the employee's refusal. But it can be difficult to conduct a full and fair investigation without the complainant's cooperation. In these circumstances, it may be wise to discuss with the complainant why they do not wish to participate and see if it is possible to alleviate any fears or concerns they may have about the process.

In either case, special circumstances may arise which might make it difficult for a party to participate, for example, medical issues. In these situations, both the employer and impacted employee are advised to seek legal counsel on their respective rights and obligations.

Duty to provide results – what to share?

Once an investigation is complete, the investigator will prepare a report outlining the allegations, the evidence, and their findings. This does not have to be provided to the complainant or respondent. Both parties, however, are entitled to be informed in writing of the results of the investigation and any corrective action that has been or will be taken.


There is not a one-size fits all approach to workplace harassment investigations. What amounts to an appropriate investigation will depend on the unique circumstances of the workplace and the details of the complaint. In every case, however, employers should ensure they follow a fair and transparent process, where both the complainant and respondent have the opportunity to provide their version of events.

Employees and employers alike are encouraged to inform themselves about their rights and obligations when workplace harassment complaints arise. Lee Workplace Law would be happy to answer any questions you might have.