Take right steps when conducting workplace harassment probes

Employment/Labour /
Stuart Rudner
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By Tony Poland, LegalMatters Staff • Failing to conduct an investigation into allegations of harassment can not only result in litigation but could harm a company’s image and its ability to retain valuable employees, says Toronto-area employment lawyer and mediator Stuart Rudner.

And often, it is not just what you do but how you do it that can make a difference when conducting an effective and thorough investigation, says Rudner, founder and managing partner at Rudner Law.

“Not all investigations are created equal. The bottom line is you must investigate allegations of misconduct in a manner that is reasonable in the circumstances,” he tells LegalMattersCanada.ca. “That might mean a couple of brief discussions and a concluding email, or a process that takes months and involves dozens of witnesses and extensive documentation. You need to have a plan in place. Guessing is never a good idea; most of our work comes from people who assumed that they knew what their legal obligations were.

‘You want to get proper legal advice’

“You want to get proper legal advice because if there is a harassment issue that is allowed to continue, you have failed in your legal obligations and exposed the company to more liability,” adds Rudner, who authored the book You’re Fired! Just Cause for Dismissal in Canada, to help people understand their legal rights and obligations when it comes to employment law. “Our firm is here to ensure that as an organization you protect yourself so no one can claim you didn’t take the correct steps to prevent and/or address harassment.”

According to Statistics Canada, one in four women and one in six men experienced inappropriate sexualized behaviour in the workplace in 2020. The behaviour included “inappropriate verbal or non-verbal communication, sexually explicit materials, and unwanted physical contact or suggested sexual relations.”

Rudner, whose firm regularly blogs on workplace issues, says he is not surprised at StatsCan’s findings.

“That doesn’t necessarily mean we are seeing an increase in this type of behaviour,” he explains. “More likely, we are seeing an increase on the number of reported incidents; people are now more comfortable coming forward and reporting these incidents. They are also more aware of their rights. 

“For years, sexual harassment was tolerated or implicitly condoned, especially if the perpetrator was the employer or someone who was seen as being particularly valuable within the organization,” Rudner adds. “More often than not, if somebody complained about sexual harassment, they would be the one to lose their job. But that’s all changed in recent times.” 

Accusations led to more victims coming forward

Accusations against celebrities such as Jian Ghomeshi and Harvey Weinstein that led to the Me Too movement “had a tremendous impact,” leading to more victims coming forward, he says. But there was also an unexpected result.

“Because of the tremendous social pressure, there was a shift and initially the pendulum swung completely the other way,” Rudner says. “As soon as there were any allegations of impropriety the accused lost their job before there was a proper hearing, which is equally inappropriate. That is why investigations are integral in cases of harassment.”

He says while the majority of employers understand that harassment cannot be tolerated, “there is still an ongoing need to address such situations.”

“It’s encouraging to see that people are aware of their rights,” Rudner says. “In the meantime, employers must be careful not to make any assumptions. Don’t assume that you know everything that is going on within your organization.

Employers must make clear that harassment is unacceptable

“Employers must make it clear to all staff that harassment will not be permitted and ensure that employees have the tools to report concerns,” he adds. “If issues are properly addressed, companies will be able to provide a proper work environment and, ultimately, that is going to be better for the organization.”

He says one of the biggest mistakes employers make is assuming that an investigation is unnecessary if no complaint has been filed if an allegation was made anonymously or the alleged victim or perpetrator has resigned.

“None of those situations eliminate the need to investigate,” says Rudner. “An employer is obliged to take action under Bill 132 of Ontario’s Sexual Violence and Harassment Action Plan Act, as well as their general obligations to take all reasonable steps to ensure a safe work environment. There’s a duty to investigate if you become aware of an incident of harassment. There doesn’t have to be a formal complaint.”

When issues arise, they should be dealt with immediately, he says.

“There should be an investigation to determine whether there was harassment and, if there was, to decide the type of discipline or action required to remedy the situation,” Rudner says. “This is where it’s helpful to get advice from a good employment law firm.”

Investigations can come in different scopes and sizes

Each investigation could be different in size and scope depending on the complaint and the number of people involved, he says. Documenting everything is essential.

Rudner says he prefers to retain an investigator rather than do the investigation himself. The investigator should be experienced in employment and harassment issues. Once the investigator is retained, all the relevant parties should be made aware of the process and what to expect.

“You should not conduct an investigation by ambush. Everyone involved must be aware of the allegations and know that they are going to be interviewed,” he says. “Typically, l prefer to be the quarterback. I oversee the development of a plan and its implementation. The investigator is to reach a conclusion as to whether the allegations have been established or not, and it is not my role to interfere with that analysis. Once they are done, I can advise our client on next steps, which might include discipline, dismissal, training, or any other follow-up.

“Sometimes the finding is that there wasn’t harassment, but there were some less than civil engagements or perhaps someone is not managing effectively. Employers may then need to update their workplace policy.”

Reviewing policies regularly is important

He recommends organizations regularly revisit those policies to ensure they are in line with the shifting employment landscape, explaining “many people assume the investigator must be a lawyer but there are some excellent non-lawyer investigators that we use all the time who can conduct a probe efficiently, effectively and cost-effectively.”

“It is my belief that you cannot be both counsel and investigator because the investigator becomes a witness if the case goes to a hearing,” Rudner adds. “I prefer to work with my client to give them advice.”

An experienced, independent investigator provides expertise that may be lacking within the organization and also removes any real or perceived conflict of interest that may arise with an internal probe, he says. 

The reality is that “you should never investigate up” as that is almost impossible to do objectively, and any existing relationship with a party will raise eyebrows, says Rudner. “And practically speaking, most people within the organization lack both the training and time to conduct a proper investigation,” he adds.

Subscription service provides quarterly policy update

“There are always going to be changes in legislation, best practices and societal norms,” says Rudner. “To make life easier for our clients, we offer a subscription service as part of our Employer Services which provides quarterly updates to our clients’ policies and procedures, as well as alerting them to potential changes to be made to other documents like employment agreements. They don’t have to keep on top of legislative changes or worry that their policies are out of date; we maintain them.”

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