Addressing Workplace Harassment in Canada

Author: Peter J. Thorup and R. Lance Ceaser for The Lawyers Weekly

Addressing workplace harassment effectively involves two primary elements: implementing pro-active measures to prevent harassment; and investigating and taking immediate action when the employer becomes aware of a complaint.

Before workplace harassment becomes an issue, it is advisable for the Canadian employer to implement an harassment policy which defines prohibited conduct and outlines a procedure for receiving and investigating complaints. An effective policy should stipulate that violation of its terms may result in discipline, up to and including termination of employment.

Employers in Canada should ensure that the rights and obligations of all workplace parties under the policy are communicated to all employees. Employers are encouraged to provide harassment training to emphasize their commitment to provide a Canadian workplace free of harassment and to satisfy their obligations of due diligence.

When an employer in Canada is faced with a workplace harassment complaint, there are a number of steps that an employer should take.

• First, it is important to ensure that the complainant understands that the investigation will be kept as confidential as possible, but that the alleged harasser is entitled to know the identity of his or her accuser and the factual basis of the complaint. Furthermore, the complainant must be informed that witnesses who will be interviewed during the investigation will likewise be aware of the circumstances of the complaint.
• In Canadian workplaces with existing harassment policies, complaints must be addressed in accordance with the relevant policy. Failure to follow the process for handling complaints may attract liability and will undermine the effectiveness of the policy.
• Respond to all complaints immediately to reassure the complainant that the issue is being taken seriously. A complainant who feels his or her complaint is being dealt with is less likely to file a human rights complaint, hire a Canadian labour and employment lawyer or initiate some other form of litigation.
• Conduct a timely investigation of the complaint. The more quickly the investigation is completed, the better the prospects for obtaining the relevant facts and dealing with the concerns in a manner that instills confidence among all the parties.
• Ensure that the investigation of the complaint is thorough, complete and unbiased. In that regard, the following investigation procedure should be established:
  • Select a investigator in Canada who will not only be impartial, but is perceived as being neutral by employees and management alike;
  • In potentially serious cases, consider retaining an external expert who is experienced in conducting investigations;
  • The investigator should not attempt to simultaneously fulfill other roles, such as trainer, advisor or mediator;
  • Make sure that the investigator has the necessary resources, such as access to witnesses, personnel files, and private facilities to conduct the investigation;
  • Provide the complainant and the alleged harasser with an opportunity to give their versions of events, including identifying any witnesses;
  • All relevant information must be before the investigator, and all witnesses should be interviewed by the same investigator;
  • In order to assess the credibility of witnesses, it is important that interviews be conducted in person whenever possible;
  • The investigator must document and maintain records of all stages of the investigation, including detailed notes of interviews with witnesses;
  • A report of the investigation, including details of the process and any findings, should be prepared by the investigator as soon after completing the investigation as possible;
  • The employer and investigator must decide what written information will ultimately be provided to the complainant and respondent.

Once a thorough investigation of the complaint has been conducted, and the employer has received the investigator's report, the Canadian employer must decide upon the appropriate course of action. In the event that harassment in the workplace is found to have occurred, the employer may consider both non-disciplinary and disciplinary action. Options available to Canadian employers in responding to a finding of harassment include: demanding an apology for the complainant; providing counseling and/or training to the harasser and other staff: disciplining or dismissing the harasser; or changing the location, assignment or reporting relationship between the complainant and harasser.

When determining the appropriate remedy for harassment, it is important to focus on what is necessary to mitigate its effects on the complainant. Although dismissal may be warranted in some cases of workplace harassment, a Canadian employer should ensure that this action is reserved for situations where a less harsh response is not appropriate.

By taking pro-active steps, such as implementing a Canadian workplace harassment policy and training employees in appropriate conduct, the incidence of harassment in the workplace should be reduced. However, to avoid liability, it is important that a Canadian employer have a complete strategy for addressing complaints when they arise. Knowing how to properly investigate such complaints is, therefore, crucial. Before starting an investigation, you may want to consider discussing your situation with a Canadian labour and employment lawyer.

Peter J. Thorup and R. Lance Ceaser are at Filion Wakely Thorup Angeletti LLP. Peter Thorup can be reached by e-mail at pthorup@filion.on.ca

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