Workplace investigations: tips for employers and employees
By AdvocateDaily.com Staff
Canadian employers have faced a significant increase in workplace harassment claims since the Ontario Health and Safety Act (OHSA) was amended last fall, says Toronto employment lawyer Doug MacLeod.
Many companies are unaware of these changes, he tells AdvocateDaily.com.
“The OHSA amendments did a couple things that put some teeth into Ontario's anti-workplace harassment law,” says MacLeod, principal of MacLeod Law Firm. “They also expanded the definition of workplace harassment to include sexual harassment.”
While many smaller employers are unaware of their new investigative obligations under the Act, employees are emboldened by the fact they are protected from any reprisals for filing a complaint, says MacLeod, who has received a significant increase in harassment claims this year.
“Harassment is in the eye of the beholder,” MacLeod says. “If people are getting performance-managed and put on a performance improvement plan, that might feel like harassment to them and they file a complaint. I see that a great deal. People think there’s writing on the wall and they’re going to get fired and they think the best defence is a good offence.”
Under the OHSA, employers are now required not only to investigate when an employee comes forward with a complaint — they have to investigate any incident that comes to their attention, MacLeod says.
“I recently had a call from the owner of a restaurant who said one of the staff (not even a supervisor) said she heard the manager make a sexually inappropriate comment to another staff member. That triggers an investigation.
"Even if the harassed staff member who’s two or three steps from the conversation doesn’t come forward, the employer has to look into it. The next question is, who’s going to do the investigation? It needs to be someone who knows what they’re doing. If it’s someone with no background in workplace investigations, the legislation says that’s not good enough.”
All employers, large and small, should have someone on staff who is trained in doing workplace investigations, says MacLeod. “You don’t have to be a rocket scientist to do it, but for straightforward simple investigations you probably need a day in a classroom to understand the different concepts and issues that might come up in an investigation and how to deal with them.”
Law firms and human resources consultancies, among others, offer this training.
“It’s a huge growth industry,” MacLeod says.
He advises all employers, large and small, to do the following:
1) Have a written policy on harassment that includes a complaints process posted in the workplace.
2) Have somebody on staff trained to do workplace investigations (otherwise, when a complaint is made, the Ministry of Labour can order an employer to hire an external investigator at their own expense).
3) Be proactive and investigate any complaints immediately.
“If you have an internal person, most complaints can be resolved very quickly. If you don't have a complaint process and the employee goes to the Ministry of Labour, things can get very expensive.”
In cases where the person accused of harassment is the boss, it will usually be necessary to hire an outside investigator, MacLeod says.
“You can’t have an internal person do it: they’re investigating their boss, a difficult dynamic to handle for anybody,” he says.
At the moment there is no regulation of workplace investigators, so “anyone can hang up their shingle and do it.”
MacLeod advises employers to determine the investigator’s mandate up front. For example, how many witnesses will initially be interviewed? Is a written report necessary? Are recommendations needed?
In sexual harassment cases, employees have the choice of making a complaint under the OHSA or under the Human Rights Code, MacLeod says. The OHSA requires the employer to investigate, to tell the employee the outcome of the investigation and to inform them if any corrective action was taken — but it doesn’t provide for any damages to be paid. With a human rights claim, an employer can be ordered to pay the employee damages.
Deciding which complaint process to use depends on whether you’re seeking damages or whether the harassment has made the working relationship untenable, says MacLeod. “For some people they just want the harassment to stop.”
For employees experiencing harassment, he advises:
- Go to the Ministry of Labour if your employer is not meeting its obligations under the OHSA.
- Know that for sexual harassment you have the option of an OHSA or a human rights complaint. In either case, you are protected from reprisals.
- If you have been dismissed for “just cause” because you harassed a co-worker, be aware that the employer should give you an opportunity to hear your side of the story. If they do not, or they do a sham investigation, then you may be entitled to damages.