Workplace Harassment Complaint - Basics on the Process
A wave of recent legal updates on workplace harassment underscores that it continues to be an issue that is real and present. The legal landscape is trending towards tighter controls at the workplace. Not surprisingly, employees are correspondingly more vocal, objecting to mistreatment at work and filing workplace harassment complaints.
What can employees and employers expect from a workplace harassment complaint and the process that follows?
1. Informal vs. formal
There is not a fixed anatomy to a workplace harassment complaint. To start, a complaint may be lodged informally or formally. Keep in mind, how a workplace harassment complaint is worded and written is critical. Complaints have been dismissed not because there is no merit, but because it is written ineffectively, and in some cases, inaccurately. In those cases, the employee may be required to "start over", or worse, questioned about their credibility and motives.
Some employees mistakenly believe that the employer should have known about the harassment being complained about, and miss important details in the complaint. While employers have obligations to keep the workplace safe, they are not required to be omniscient. Employees have an obligation to first appropriately raise the issues troubling them at work, before they can have an expectation of resolution. Employees with workplace concerns should speak with an employment lawyer at the outset to effectively strategize.
2. Employer's obligation to investigate
Once a complaint is made, the employer has a positive obligation under the occupational health and safety laws to investigate. Is there a requirement to involve an external third party workplace investigator in every case? The answer is no. Where appropriate, a complaint may involve an internal investigation by the employer.
In fact, a complaint may be addressed informally or formally. Depending on the nature of the complaint, an informal approach may be ideal. This may entail an internal investigation, informal mediation by a neutral manager, re-arrangement of reporting structures, or such other measures. Where it is inappropriate or unfeasible to resolve it informally, the complaint will be escalated.
3. Who is the investigator?
When would it be appropriate to bring in an external investigator? Typically, when the complaint involves very serious allegations, such as sexual harassment or workplace violence, the employer may be remiss if the investigation stayed internal.
Likewise, complaints involving organization-wide culture or morale issues, such as widespread rumors, gossiping, or blatant displays of favoritism affecting employee productivity, may require a neutral external investigator.
As well, small to mid sized businesses are recommended to go external, even if that means greater costs in the short term. If nothing at all, the act of engaging an external investigator signals to employees that the employer takes the complaint seriously and intends to stay neutral. This can go a long way in reaching a resolution in the end that is less costly to the employer.
In all cases, the key is that the investigation is intended to be a process of unbiased fact finding to get to the bottom of the complaint. While there is no hard and fast rule on what it has to look like, as a general rule of thumb, it should not be protracted or lengthy, it should be thorough and complete, and it should be neutral.
4. No reprisal
At the completion of the investigation, where the complaint is not substantiated but was made initially in good faith, there can be no retaliation against the employee who made the complaint. Otherwise, the employer may face grave consequences.
5. Discussing Resolution
What happens where the investigator substantiates the complaint? This is an opportunity for the employee and employer to be creative and strategic. Achieve a win-win resolution that makes the most sense from a practical and cost-and-benefit perspective.
In finding a resolution, keep in mind the following. Recent legislative updates to the Occupational Health and Safety Act have placed greater obligations on the employer on how a workplace harassment complaint should be dealt with. Beyond the handling of the complaint, our courts, Human Rights Tribunal, and union arbitrators, have all in the past year confirmed that harassment at work, where proven, makes a valid legal claim. The employer may face significant consequences, such as monetary damages payable to the employee, and more critically, losses in goodwill and reputation.
Consider whether there is any weakness in the handling of the complaint from start to finish? What is the nature of the complaint and what is the outcome? All that carries legal ramifications and consequences for the employer and the employee. Both sides should each consult an employment lawyer and learn how to best negotiate a resolution.
For the employee, explore what the legal rights and duties are, what types of legal remedies are available, and, how best to leverage all that to the employee's favor. Note, the employee who filed the complained is not entitled to see the investigation report itself outside of formal litigation, only to be informed of the conclusion and recommendations. However, that does not detract from the employee's ability to effectively strategize and advocate his or her legal rights.
For the employer, consider following the recommendations of the investigator. Learn exactly what the employee is entitled to at law to gauge how best to approach the resolution. More importantly, be forward thinking. This is an opportunity to enhance best practices on workplace harassment policies, and set up interactive training seminars for all employees.
Happier employees, less workplace harassment complaints
Ultimately, the increasing controls imposed on Ontario businesses are not going away. Every effort put into employee engagement and happiness is an investment that helps minimize complaints and costs. It can be instrumental in instilling goodwill and trust within the workplace. It is good for employees; it is good for business.
Finally...
Links to related resources provided by the provincial and federal government:
Workplace Harassment: https://www.labour.gov.on.ca/english/hs/pubs/wpvh/...
Is it Harassment? A Tool to Guide Employees https://www.canada.ca/en/treasury-board-secretaria...
Procedure for Resolving Human Rights Complaints (OHRC): http://www.ohrc.on.ca/en/policy-primer-guide-devel...
