Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 November 7, 2018 | Canadian Employment Law Today CREDIT: ANDREY_POPOV/SHUTTERSTOCK sexual harassment or assault allegations, thereby necessitating the involvement of an experienced HR consultant or labour and employment lawyer. In Ontario, em- ployers may now also be liable for chronic mental stress claims under Workplace Safety and Insurance Board (WSIB) legis- lation. Sexual harassment could lead to an employee being awarded WSIB benefits for chronic mental stress, which places added importance on involving skilled professionals in the investigation process. Falling short of the duty of fairness. Any workplace investigation must be exe- cuted in a fair manner. Managers or their HR teams have a duty to clearly define the complainant, communicate the allega- tions to the respondent and consider all relevant evidence. Affected parties must have a meaningful opportunity to com- ment and respond, and the findings of the investigation must be communicated in a timely manner in writing. e unfor- tunate reality is that many organizations will take short-cuts or attempt to conduct the investigation informally — often with little documentation — leaving them ex- posed to significant risk of litigation, pen- alties or even human rights complaints. Pre-determining the outcome. Bias is a major hurdle for many organizations. In the Ghomeshi case, an independent in- vestigator found that some managers at the CBC dragged their heels in address- ing allegations of workplace harassment against the Q host due to his superstar status —the radio program was rated highly and was a major revenue driver in syndication. In other cases, we've seen employers ignore allegations against top managers or sales people because their services are deemed indispensable. Even if a termination is warranted fol- lowing an investigation, the manner with which it's handled can have significant consequences. Specifically, an employer's actions during and after the act of termi- nation will be considered in whole if the termination is challenged in court. Was the individual subject to progressive dis- cipline or given a chance to improve their workplace performance or behaviour, or was their firing a foregone conclusion with the employer simply going through the motions en route to termination? In the 2008 case Peoples v. Ontario (Minis- try of Training, Colleges & Universities), for example, the plaintiff — a Ministry of Training, Colleges and Universities employee whose management style was called into question by staff — was award- ed moral damages after it was found that her employer did not engage in progres- sive discipline and failed to provide an opportunity to respond to investigation findings prior to her dismissal. e case is one of many that underscores the need to handle sexual harassment investiga- tions in an objective manner according to clearly-defined protocols if an employer hopes to avoid potential accusations of bias and future legal headaches. Ignoring the aftermath. Once an inves- tigation is complete and the dust settles across a workplace, many leaders will look to turn the page and get back to run- ning their business. While that approach is understandable, they soon realize that the days and months after an investiga- tion are only the beginning of a protract- ed process to restore their workplace cul- ture to pre-incident levels of productivity and engagement. During that time, lead- ers must be visible and accountable to their employees, deploy an effective com- munication plan to keep the organization abreast of their restoration plans and re- mind everyone that employee wellness is a top concern. Leaders — particularly at the middle-management level — should be fully trained and provided with the necessary tools to re-engage their teams, while also assessing employee perfor- mance and making operational adjust- ments to bolster key performance met- rics. From there, the focus should be on implementing restorative activities that reposition the organization for success, give employees a reason to enjoy coming to work again, and help rebuild bottom- line performance. For more information see: Doyle v. Zochem Inc., 2016 CarswellOnt 19295 (Ont. S.C.J.). Peoples v. Ontario (Ministry of Training, Colleges & Universities), 2008 CarswellOnt 7706 (Ont. S.C.J.). ABOUT THE AUTHOR Laura Williams Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 or lwilliams@williamshrlaw.com.

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