Ontario Construction News staff writer
How should contractors and employers deal with workplace harassment complaints?
Employment and labour lawyers from Sherrard Kuzz LLP provided some answers for the Ontario General Contractors’ Association (OGCA) and the industry in a late February Zoom program – and suggested ways businesses can deal with thorny issues raised by provisions within the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (the Code).
The challenge: To determine if harassment has occurred, conduct a proper investigation, draw conclusions and, if there is a problem, address it.
While many categories of workplace harassment complaints may fit within the Code, employers also have distinct obligations to ensure a workplace harassment complaint is investigated under the OHSA, indicated lawyer Michael Sherrard.
The OHSA defines workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” An employer’s obligation to investigate a harassment complaint extends to sexual harassment, as well as other forms of workplace harassment.
If an employer learns about harassing behaviour – it might be a written complaint, or an informal statement – the law requires the employer to “ensure an investigation is conducted” into the incident.
An employer does have the right to discipline an employee for inappropriate workplace behaviour, but this must be handled carefully and with respect, Sherrard said. As an example, a supervisor can make it clear to an employee it is wrong for him to be repetitively late for work, and while the employee may think this is harassment, under the OHSA “a reasonable action taken by an employer or supervisor relating to the management and direction of workers, or the workplace, is not workplace harassment.” However, if the supervisor goes further and insults the worker, for example, calling him “stupid” — the disciplinary response may go over the line and be determined to be harassment.
Sherrard says an investigation must be conducted by someone “who is not alleged to be the harasser, nor is under the direct control of the alleged harasser”, outside the chain of command or authority of the complainant. It is also wise to have someone in the room to take notes, in addition to the interviewer, but recording the interview is not recommended, except in exceptional conditions. “We want to have an investigator and a note taker,” he said. “It’s very important for the investigator to be able to pay attention, not only to what’s being asked but to the answers, because those answers may point you in a certain direction with respect to follow-up questions.”
In addition to the complainant and respondent, other witnesses may need to be interviewed, and social media evidence can also be gathered.
As a rule, he said it is best to conduct the investigations on-site (if there can be suitable privacy for the process). Failure to conduct a proper internal investigation can result in an order from the Ministry of Labour, Training and Skills Development requiring a further investigation by an external investigator, which can be costly.
Once the investigation is completed, the investigator must write a report, outlining the complaint, response, evidence gathered, and the investigator’s conclusions on a “balance of probabilities”, which is a less strict standard than “beyond a reasonable doubt” under criminal law.
Lawyer Samia Hussein says an investigation must be conducted properly and thoughtfully. Beyond the risk of the Ministry ordering another, external, investigation, there is a risk that terminating an employee as a result of a poorly done investigation can be costly. In one case, an employer terminated a senior manager after a harassment complaint. “The manager was not made aware of the allegations and not given a meaningful opportunity to respond,” Hussein said. “The employer relied on the insufficient report findings and terminated the worker. Ultimately, the employer was required to pay damages arising out of the manner in which the termination occurred, which included how the investigation had been undertaken.”
Other factors to consider include whether a worker is unionized; in which case, a union representative may need to be invited to the investigation interviews.
Lawyer Patrick Ganley noted it is important to be careful and thoughtful about how notes are taken and the investigation report is written. Stick to the facts, and avoid editorial comments, said Ganley. “Notes that contain editorial comments or things that aren’t relevant to the issues, may significantly undermine the credibility of the investigation, and any subsequent action taken by the employer.”