Michael Ford (post until Oct. 31/19)
Employment & Labour

Companies risk exposure with botched workplace investigations

Harassment in the workplace affects all genders and employers have a duty to ensure they’re protecting the well-being of their workers, says Ottawa employment lawyer Ella Forbes-Chilibeck.

"I'm seeing much more sexual harassment involving people who have diversity issues around gender," she tells AdvocateDaily.com. "Today, it’s much more open and fluid in terms of how people define themselves," but some people have difficulty accepting those who identify as transsexual or gender-fluid.

"We're seeing some pushback that is pretty ugly," says Forbes-Chilibeck, the founder of Forbes-Chilibeck Employment Law. "My take is that it reflects ignorance, a failure to understand and an inability to think broadly."

The #MeToo movement and other social media campaigns have highlighted the widespread and unacceptable prevalence of harassment in the workplace, she says.

A recent report shows that 33 per cent of female and 12 per cent of male respondents said they have been sexually harassed at work.

"Employers have a positive duty to their employees to ensure that the work atmosphere is conducive to the well-being of its employees, which includes investigating all complaints of harassment,” Forbes-Chilibeck says.

"When you're conducting an investigation, your role is not to advise, but rather to make findings that are based on facts," she says. "Sometimes I'm retained after an investigation to do healthy workplace development and in those sessions, I discuss what is and what isn't an appropriate response, and to help people understand how to be compassionate."

Forbes-Chilibeck says Ontario employers are still adapting to the legislative changes to ensure equality and harassment-free workplaces and are working to finding a balance between protecting workers and being over-zealous.

"Employers are very concerned they might be perceived as condoning something but at the same time they don't want to be encouraging really frivolous and vexatious stuff that is motivated by reasons other than equality and protections under the Act," she says.

Anti-harassment legislation in Ontario has developed quickly since 2010, when Bill 168 mandated employers devise workplace violence and harassment policies, develop programs, and conduct assessments to measure the risk of workplace harassment. In 2016, Bill 132 expanded these requirements and protections while creating additional obligations for employers to conduct investigations into incidents and complaints of harassment.

A year later, the legislation in Bill 177 added harsher penalties for employers who failed to prevent workplace harassment. Fines against individuals increased to $100,000 from $25,000 and to $1.5 million from $500,000 for corporations convicted of an offence.

Forbes-Chilibeck says she thinks the stiffer penalties have been a positive development because employers were initially concerned Bill 168 was toothless.

"With the changes in 2016 and 2017, that's when we brought people to the table and said they have these obligations to investigate and they also have this exposure if they chose to ignore it or be complicit — or appear to be complicit — to allow harassment to continue," Forbes-Chilibeck says, adding investigations have to be neutral and professional to ensure a fair process.

"If you think you can conduct a fair and unbiased investigation, it's probably good to handle it internally," she says. "Many organizations are concerned with the costs associated with these investigations."

But the organization could face negative exposure if an investigation is in some way botched, Forbes-Chilibeck warns.

She cites a 2016 case covered extensively in the media where Federal Court Justice Russel Zinn set aside a harassment finding because the internal investigation process breached natural justice and procedural fairness.

"The basis for the decision was that there was a perception of bias on the part of the investigator," says Forbes-Chilibeck, who was not party to the case and comments generally.

The investigator was thought to be argumentative and interrupted the applicant, shook her head and frowned openly, she says, noting that a witness who offered evidence felt the outcome of the investigation was predetermined.

"This investigation was problematic for everyone who was involved in that investigation," Forbes-Chilibeck says.

She says there aren't standardized norms for harassment investigators, and as a result, there is a broad range of people who are conducting these investigations.

"Some of them are legally trained, some not. Some come from backgrounds in policing, social work or human resources," Forbes-Chilibeck says. "It’s often difficult for employers to assess their qualifications.

"Ultimately an investigation is supposed to assist everyone in ensuring the behaviour in question doesn't reoccur," she says.

If there's a suspicion that a criminal charge could result from the investigation, Forbes-Chilibeck suggests the employer opt for a legally trained investigator who has a clear understanding of the law, legislation and policies in the field and can assess credibility.

That kind of an investigation sets "a very high bar and you have to be careful in choosing the investigator," she says.

The Ontario Human Rights Code defines harassment as engaging in vexatious comment or conduct that's known or should reasonably be known to be unwelcome. Ontario's Occupational Health and Safety Act uses a similar definition applied to an employee in a workplace.

The courts also have recently expanded some remedies for harassed workers that include additional damages for psychological injuries sustained as a result of the behaviour, Forbes-Chilibeck says.

Courts have adopted a personal injury approach to compensate employees rendered incapable of working as a result of serious workplace harassment, she says. In one case, Forbes-Chilibeck says the plaintiff was harassed by her immediate supervisor and became so clinically depressed she had no choice but to accept a medical discharge.

In that case, the trial judge held that the supervisor owed the plaintiff a duty of care and the employer was found vicariously liable for the behaviour. The plaintiff was awarded $950,000 in damages for psychological harm, lost wages and lost capacity in future earnings.

In another case, the court found an employer liable for the tort of harassment, and set out a four-part test in making its determination:

  • Was the conduct of the defendants toward the plaintiff outrageous?
  • Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
  • Did the plaintiff suffer from severe or extreme emotional distress?
  • Was the outrageous conduct of the defendants the actual or proximate cause of the emotional distress?

"It is remarkable how fast the remedies for harassment in the workplace have evolved along with the liability for the employer confronted with such allegations under both legislation and common law," Forbes-Chilibeck says. "If you are the employer in receipt of a harassment complaint, take it very seriously.”

To Read More Ella Forbes-Chilibeck Posts Click Here
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