Bill 168, which came into force in June of 2010, amended the Occupational Health and Safety Act to require most businesses to maintain a workplace violence and harassment policy, and to post them in a conspicuous place.
Since Bill 168, we have seen an increasing number of workplace harassment complaints, ranging from sexual harassment to micromanaging and bullying. At the same time, many well-intentioned employers struggle to address harassment complaints in a way that respects all of the parties, and minimizes workplace disruption.
Conducting a proper workplace investigation requires an understanding of the law of harassment, and proper investigative procedure. Many businesses do not have a full time HR specialist on staff, and often what management knows about investigation, they have gleaned from television and movie scripts. Coming to the wrong conclusion, or worse yet, doing nothing at all, can lead to unintended consequences, and costly mistakes.
What To Do When You Receive A Workplace Harassment Complaint
The first step of an investigator is to ensure that you have a fully documented complaint with all of the relevant details. Initially, you must determine if a formal investigation is even necessary. If so, consider what interim measures must be enacted, and what the investigation will look like. Next, notify the parties so that they understand next steps, and the process that will be followed.
Our workplace investigation lawyers have created an information sheet summarizing the steps to take when you receive a workplace harassment complaint, or become aware of an incident of workplace harassment.
RECEIVE EMAIL – WORKPLACE INVESTIGATIONS – PRELIMINARY STEPS
What is Workplace Harassment?
The legal definition of workplace harassment is defined variously under the numerous sources of law that exist. Under the Occupational Health and Safety Act, workplace harassment is defined as: “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought to be known to be unwelcome.”
This is essentially the same definition of harassment that is set out in the Human Rights Code, except that the Code is limited to harassment that is related to race, ancestry, place of origin, colour, ethnic origin, creed, age, record of offences, marital status, family status, or disability.
Under the common law, workplace harassment often underlies claims of constructive dismissal. The basis of such a claim is essentially a claim for breach of contract. By failing to provide a workplace free of harassment, the workplace is guilty of constructive dismissal. However, not every occurrence of workplace harassment will lead to the conclusion that there has been a constructive dismissal.
Whatever the legal theory, providing a work environment free of violence and harassment is sound business practice, and it is the right thing to do – but, it is not always easy to recognize. Workplace harassment can be unintentional, and the fact that certain conduct was well-intentioned is not necessarily determinative.
Examples of workplace harassment may include:
- Making racist, sexist, or otherwise insensitive comments or jokes, whether the victim is directly targeted or not
- Circulating or displaying offensive materials in print or electronic form
- Bullying and intimidating behaviour
- Romantic overtures and overt sexual harassment
Short-lived conflict, which arises from time to time between workers, will not typically meet the legal definition of harassment. Moreover, management discipline, coaching, or training of an employee is not harassment, even if it is not well received.
Workplace violence is the exercise of physical force by a person against a worker in a workplace that causes, or could cause, physical injury to the worker. This may include:
- Verbal threats
- Leaving threatening notes or sending threatening emails
- Physically intimidating behaviour that is threatening
- Fighting and other overt acts of violence
Contact A Workplace Lawyer Today
The team at Haber Lawyers are well-versed in the law of workplace harassment and workplace investigations. We can assist you in appointing an internal investigator, and help that person along the way. Other times, it will make more sense to hire one of our lawyers who will act as an external investigator. A competent investigator will: gather and assess the facts without bias, maintain neutrality throughout the investigation, determine the credibility of witnesses, write proper reports, advise on corrective action, and much more.
Haber Lawyers will guide you through the workplace investigation process. For reliable advice from seasoned workplace lawyers, contact us today.