Workplace Investigation Support for Employers
A Vey Willetts LLP Employment Lawyer can assist employers with an allegation of workplace harassment in a manner consistent with the Ontario Occupational Health and Safety Act and the Ontario Human Rights Code.
Workplace Harrassment Investigations
Employers have the responsibility to maintain a harassment free work environment under both the Occupational Heath and Safety Act (OHSA) and Ontario’s Human Rights Code (OHRC).*
Therefore, the moment an employee (“the complainant”) reports harassment, an employer’s legal duty to investigate and address harassment is triggered. Employers have a two-fold duty when it comes to workplace investigations: to investigate and inform.
The Ontario Occupational Heath and Safety Act mandates that employers must conduct investigations appropriate in the circumstances to address complaints and incidents of harassment.
Additionally, employers have a duty to inform the employee(s) subject to the alleged harassment by providing written results of the investigation and any subsequent corrective action taken.
* Federally regulated employers are subject to separate rules as mandated by the Canada Labour Code and Canadian Human Rights Act.
Initial Steps for Employers to Take Once a Harassment Complaint is Received, Including the Importance of Reviewing Your Workplace Harassment Policy
Before conducting the workplace investigation process, employers must take immediate steps to ensure everyone in the workplace is protected from further potential harassment, even if the allegations have not yet been proven.
If a sexual harassment complaint is made, you should consider how best to prevent any potential contact between the complainant and respondent (such as having these persons work at different locations or remotely), or even by placing the alleged harasser on a paid administrative leave while an investigation is pending/ongoing (in appropriate circumstances).
It is also best practice to review your anti-harassment policy and program, as it is important to ensure that harassment complaints are processed consistently and fairly. The Ontario Occupational Heath and Safety Act requires all employers create a workplace anti-harassment policy and program that must be reviewed annually and on an as needed basis. Employers should refer back to their policy and program after every workplace investigation to see if there may be room for improvement.
The anti-harassment policy must be written and posted at a visible location in the workplace, such as a breakroom. The policy must define workplace harassment, encourage all persons to make complaints, acknowledge that complaints are confidential, and explain that employees cannot be penalized for reporting harassment.
A fully compliant anti-harassment policy would not serve its purpose without an anti-harassment program to put the policy into action. Your program must include measures and procedures to report harassment, set out the investigation process, explain how information will be collected from involved parties and kept confidential, and explain how the complainant and alleged harasser will be informed of the results of the investigation.
Planning and Conducting a Workplace Harassment Investigation
Employers are responsible for planning and conducting a workplace investigation that possesses the following four elements: timeliness, objectivity, confidentiality, and thoroughness.
While you have flexibility to choose an internal or external investigator, the investigator must be an objective party who is not involved in the complaint and has a good understanding of applicable statutory and policy requirements. Furthermore, you cannot disclose any information collected during the investigation process unless there is a compelling reason or as may be required by law.
Investigations must also be comprehensive. This entails taking notes and making reasonable efforts to interview all parties involved, including the complainant, the alleged harasser, and any relevant witnesses.
Once the investigation concludes, employers must advise the complainant and respondent(s) of its outcome in writing. If the harassment complaint has been made out, employers must implement a remedy and a scheme that prevents reoccurrence of harassment.
Both the complainant and respondent(s) must be advised of the corrective action taken. At this stage, it is advisable to seek legal advice to ensure statutory obligations are being met, determine appropriate disciplinary action, and plan next steps to help ensure a smooth transition forward for your workplace.
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A Proven Track Record of Legal Success
Employment and Labour Laws are not always straightforward, but whether you are an employee or an employer, understanding your rights and duties will only stand to benefit you. Reach out to an employment lawyer or labour lawyer today if you have any questions and be sure to get what you deserve and safeguard yourself for the future. The lawyers at Vey Willetts LLP have a proven track record and are happy to assist. Our Ottawa employment lawyers and labour lawyers serve clients throughout both Ottawa and Ontario.
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