Harassment complaints became more complex with the passage of Bill 168 under the Occupational Health and Safety Act. Several court and arbitration decisions have also imposed more exacting standards on employers who act on the findings of a workplace investigation, so it is critical that investigations are done properly.
Follow your own policy
Employers in Ontario should have formal violence and harassment policies posted in the workplace, and all employees must be trained on them. Bill 168 requires a harassment policy to set out how a harassment complaint will be investigated, so your investigation must be consistent with your policy.
Take every complaint seriously and investigate as soon as possible so it is resolved in a timely way. The investigator needs to decide whether the behaviour is in fact harassment as defined in the policy. That definition should match the definition of harassment under the OHSA.
When a supervisor is the alleged harasser
Complaints against a supervisor present special challenges. Depending on the allegation, either the supervisor or the employee who complained may need to be transferred until the investigation is complete.
Employees sometimes feel harassed when a supervisor is disciplining them or managing their performance. It is important for employees to understand the difference between harassment and legitimate workplace management.
In Amodeo v Craiglee Nursing Home Limited, the Labour Board found that blunt, unflattering performance management is not harassment, even if it has unpleasant consequences for the employee.
Running the investigation
- If the complaint isn't in writing, ask the complainant to put it in writing, so its scope can't be "expanded" as the investigation goes on.
- Interview the complainant and the supervisor first. These interviews will tell you whether anyone else needs to be interviewed.
- Limit, as far as possible, the number of people who learn about the complaint.
- Be prepared to interview the complainant or the supervisor (or both) a second time after you have spoken to the other witnesses.
- Work as quickly and confidentially as you can.
After the investigation
When the investigation is complete, decide what immediate action, if any, is needed. Tell the complainant the outcome, but not the specifics of any discipline imposed if the complaint is substantiated.
The goal is to end the conflict by stopping the inappropriate conduct and giving the offending employee clear notice that the behaviour is unacceptable.
Don't take a harassment complaint lightly. An employee may have legal recourse through a human rights application, an occupational health and safety complaint, a grievance in a unionized workplace, or a lawsuit if they feel they can no longer work there. Depending on your experience with harassment complaints and how serious the complaint is, you may be well advised to use a third-party investigator.