Not taking workplace harassment claims seriously can be costly

By Tony Poland, LegalMatters Staff • Allegations of workplace harassment can have far-reaching implications and require careful attention by the employer, the alleged victim and the subject of the complaint, says Toronto employment lawyer Jeffrey M. Andrew.

“These things are serious,” says Andrew, a partner with Cavalluzzo LLP. “The Occupational Health and Safety Act (OHSA) requires employers within provincial jurisdiction to implement policies and procedures to deal with claims of workplace harassment, to investigate allegations and to provide written reports or decisions about how they’ve dealt with a complaint.” Similar things will soon be required for employees in the federal sector under the Canada Labour Code. Both sectors currently have similar requirements to address violence or threats of violence at work.

“The thrust of the OHSA is to ensure these incidents are not swept under the rug. Having someone exposed to workplace harassment is seen as a health and safety threat,” he adds.

‘Vexatious comments or conduct’

Andrew says the law defines workplace harassment as “engaging in a course of vexatious comments or conduct against a worker that you knew or should have known was unwelcome.” This is not limited to sexual harassment or harassment based on human rights grounds, he says.

“The challenge, from my perspective, is the definition of workplace harassment broad and unclear. What is seen as harassment is very subjective to people,” he tells LegalMattersCanada.ca. “I often get people claiming their employer or a colleague is harassing them, when in fact all they were doing was following up on issues such as job performance or other regular workday matters.

“Some people feel bothered by their employer or a co-worker in these cases and will say they are being harassed. But the OHSA never intended for this sort of interaction to be covered. It is instead a conduct which most people regard as beyond the bounds of acceptable workplace conduct.”

He says harassment complaints can involve an employer, a manager or a colleague, adding that it is essential to understand the dynamics of the situation.

Complaints must be investigated

“People don’t always like each other, get along or agree. The law doesn’t well define what is the dividing line between appropriate disagreement or conflict that is inappropriate,” Andrew says. “Regardless of whether complaints are ultimately found to be valid, people are entitled to make them and they must be investigated. We are feeling our way along with this. Courts and other adjudicators will make decisions over time that will help flesh it out.”

He says when it comes to harassment, “we are dealing with a pattern of behaviour in most instances, but it doesn’t have to be. Sometimes even a single instance of abusive or inappropriate conduct can meet the test.”

“The theory behind this is that people shouldn’t have to put up with harassing conduct at work. It can lead to conflict, lost time, stress and worry,” says Andrew.

He says the Occupational Health and Safety Act mandates that employers must have a workplace harassment policy, something he finds is taken seriously.

Employers tend to be cautious

“Unless somebody makes the claim that on its face is just patently ridiculous, employers tend to be very cautious, meaning they will often investigate,” Andrew says, “sometimes with a third-party investigator.”

However, he says it is not uncommon for some employers to “draw inappropriate conclusions about what happened or to overreact in response to it, for example, firing someone when less severe corrective action would do.”

This can cause an additional problem, he says, since employers can then find themselves facing a wrongful dismissal claim or see other legal actions take place.

However, just because a complaint has been filed does not always mean an investigation will follow, says Andrew.

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“Sometimes these policies have informal components which allow the parties to voluntarily deal with an issue informally through an intermediary, which is a good idea in some cases,” he says.

However, if an investigation is necessary, Andrew says, it is vital to take the process seriously, especially if you are accused of harassment.

“If you are the subject of a complaint and not careful about how you respond, it can go wrong for you quickly. You may not always understand your rights or know how cooperative you should be,” he says. “You will be cautioned that whatever you are receiving or giving out is confidential, meaning it’s only for the purpose of the investigation.”

Once a written complaint is filed, the subject of the complaint should have the opportunity to respond and to gather documents and records that may help them to defend themselves, Andrew says.

Interview with investigator

The subject of the complaint will often have an interview with an investigator, he says.

“Usually they will allow you to have a support person, which could be a lawyer, to help you through it,” he says.

Unions provide assistance to members facing allegations of harassment. However, for those not in a union, Andrew says it can be helpful to seek legal advice to avoid making a mistake.

After the interview, the investigator will draft a witness statement for the interviewee to read, correct and eventually sign, confirming its accuracy.

“It’s important to read that statement extremely carefully. Usually, investigators are pretty good about letting you look it over and make corrections,” says Andrew. “The goal should be to get it done correctly so that your responses are accurate and as complete as possible.”

Once the investigation is done, the investigator will prepare a report of their findings, which the complainant and the subject may be allowed to review, he says, but not always. Investigator processes are not consistent, and the quality of the investigators and their processes varies considerably.

He says a harassment complaint is not something to take lightly so seek advice and support.