Don't get blindsided by workplace harassment, violence laws

Ontario law now requires that employers actively adopt policies and training designed to prevent workplace harassment and violence. Whether they paid attention to these new requirements when they came into effect or not, the reality is that significant responsibilities have now been placed on business owners.
James Heeney is a partner at the employment law firm Rubin Thomlinson LLP. He regularly advises employers and employees on all issues of employment law.
I wrote a column in 2010 warning Ontario business owners about the need to make their workplaces compliant with new harassment and violence provisions in the Occupational Health and Safety Act. A year has passed since that legislation came into force, and we’re starting to understand the impact it has on the workplace – and on employers who haven't prepared for it.

The law in Ontario now requires that employers actively adopt policies and training designed to prevent workplace harassment and violence. Whether they paid attention to these new requirements when they came into effect or not, the reality is that significant responsibilities have now been placed on business owners.

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And those responsibilities represent a potential ticking time bomb for those who haven't taken the proper action. Employees who feel there has been a breach of the harassment and violence provisions in their workplace can now file a complaint with the Ontario Labour Relations Board, and the board has extraordinary powers when it feels a breach has occurred.

An employee found to have been terminated for requesting that an employer comply with the harassment and violence provisions, for example, may be entitled to back wages and to being reinstated in their job. These are significant remedies which can be very costly to businesses.

The legislation doesn’t only protect employees who are terminated. It also applies to any suspensions, coercion and penalties that have been imposed on an employee (as well as to attempts to do any of these things), in retaliation for a worker’s attempt to enforce their rights under the legislation.

And even more worrying for business owners, for the board to make a finding it is not necessary to prove that the employer’s entire motivation for action against a worker was tied to the employee trying to enforce their rights. Rather, if the employer’s actions are thought to even be slightly "tainted" by what the board considers an improper motive, it can be deemed a violation of the act.

Similar legislation also exists in Quebec, Manitoba and Saskatchewan, with some variation.  What is not yet totally clear about the Ontario legislation is how these provisions will be applied as cases start to come before the Tribunal.

The main issue is that the legislation was designed to set out requirements tied to training and policies that an employer must adopt. Early case law suggests that it will not provide protections for employees claiming to have been terminated for filing a harassment complaint . Rather, the legislation will only apply for retaliatory conduct against employees who were insisting that employers have the appropriate workplace policy and training as required by the legislation.

That issue is somewhat moot, though, as the courts already provide anti-harassment protections throughout Canada. Specifically, the courts remain protective of the rights of both complainants and respondents in an investigation. 

Whether a province has harassment legislation or not, the courts will find employers liable where an inappropriate workplace investigation occurs or where harassment isn’t addressed. For example, an unfair investigation may taint your allegation that you had sufficient grounds, or just cause, to terminate someone who has acted inappropriately.  Similarly, you may be liable to a complainant if their allegations of harassment are not properly investigated and addressed.

What this means is whether you are an employer in a province with harassment legislation or not, you must ensure you conduct appropriate investigations and address harassment where it exists in your workplace.  As such, failing to follow appropriate workplace investigation processes can leave an employer in any province liable. 

This balancing act of the rights of employees and the rights of employers is not easy.  With this in mind, here are a few tips that can help:

Take complaints seriously

When complaints are filed by an employee, ensure that they are given serious consideration.  While there are times that harassment complaints are filed after an employee’s performance is criticized, that doesn’t mean that the allegation is without merit. For example, an employee may indeed be under-performing, but it may be found that they were also being mistreated by their boss for doing so. An employee who is late for work but is being berated with profanity by their boss in front of others for doing is still being harassed.

Acknowledge Receipt of the Complaint

Make sure that when complaints are filed you acknowledge to the employee that the complaint has been received and will be investigated.  Employees often say that they didn’t know what happened after they reported an allegation of harassment.  Tell the employee, preferably in writing, that you will investigate the complaint and then report back. 

Perform an Unbiased Investigation

Advise the employee alleged to have committed wrongdoing that there is a complaint. Don’t jump to conclusions, though, because this can cause additional problems. Remember that both the complainant and the respondent have the right to be heard before a decision is made. You shouldn’t go to a meeting with someone accused of wrongdoing with a termination letter or warning letter in hand, for example. Do an unbiased investigation and then make the decision. And be sure to give the respondent details about what is alleged to have happened before you meet with them, so they have an opportunity to fairly respond. Both the complainant and respondent should be given an opportunity to tell their side of the story. Also talk to all relevant witnesses. Make sure to have a qualified HR person or external investigator perform the investigation.  Make sure to tell everyone involved that the process is confidential and shouldn’t be disclosed to others.  

Report Back With Your Findings

Once your investigation is complete, advise both sides of the findings.

Doing this in writing avoids confusion or allegations that any parties involved weren’t aware of what  happened.

Avoid Retaliation

Always advise all parties that they won’t be subjected to retaliation for participating in the investigation. Even where a complaint is not substantiated, a complainant shouldn’t suffer negative consequences if it was filed in good faith. 

Where performance issues arise after a complaint has been filed, the employer or manager is often met with allegations of retaliation. Make sure to raise them with the employee and properly document the issues and the meetings. When documentation is kept to substantiate the performance issues, an employer is in a much stronger position to defend an allegation of retaliation.

While these steps won’t avoid all disputes, they can help limit them along with the employer's potential liability.