Canadian HR Reporter

CANADIAN HR REPORTER FEBRUARY 2019 18 FEATURES CAREpath is the only Canadian Health Care navigation program of its kind offered in Canada. We have extensive experience in navigating Canadians through the health care system. Cancer Assistance Seniors' Care Assistance HealthCare Assist Your Wellness Partner EMPLOYMENT LAW Considering the essentials of a thorough harassment investigation Ad hoc, cursory or superficial efforts will not be considered sufficient by the courts By Peter Matukas I n recent years, workplace investigations have prolif- erated in both number and public attention for numerous reasons — the dominant being legislative changes. To protect workers in Ontario, for example, the Occupational Health and Safety Act (OHSA) now requires workplaces to con- duct investigations into allega- tions of workplace harassment and sexual harassment. Further, the Ontario Human Rights Code (HRC) requires em- ployers to provide a workplace free of harassment and discrimination based upon a prohibited ground. e HRC also states that every employee has a right to freedom from harassment in the workplace because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orienta- tion, gender identity, gender ex- pression, age, record of offences, marital status, family status, sex or disability by their employer, another employee, or agent of the employer. An employer's obligation to conduct a workplace investigation is triggered by the OHSA once it becomes aware of a complaint, workplace misconduct, incident or issue — whether it is by way of a formal complaint brought for- ward by a non-aggrieved party or it is anonymous. Regardless of whether the em- ployer believes the complaint is without merit or comes from a party who has made numerous complaints in the past, each com- plaint must be properly investi- gated in a fair, thorough, impartial and timely manner. Retaliation, reprisals e basis for a workplace investi- gation can stem from a complaint based upon workplace harass- ment, sexual harassment, work- place violence, discrimination based upon a protected ground under the HRC, a failure to ac- commodate, a breach of a com- pany policy (meaning misuse of company property, theft, fraud, improper payments or gifts such as kickbacks or bribes), a breach of fiduciary duties, bullying, a poisoned work environment and retaliation or reprisals. It is essential for an employer to also protect workers who have made a complaint or have partici- pated in an investigation because both the OHSA and the HRC place a positive obligation upon employers not to engage in repri- sals or retaliation against work- ers bringing forward such com- plaints or participating in related investigations. Reprisals and retaliation occur when the employer or its agent takes an adverse action against an employee as a result of engaging in a legally protected activity or refusing to infringe upon the pro- tected right of another. To understand the complex requirements placed on employ- ers with respect to workplace investigations, it's important to first understand what is meant by workplace harassment. In Ontario, the OHSA defines workplace harassment as "(a) en- gaging in course of vexatious com- ment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment." Workplace sexual harassment is defined as "(a) engaging in a course of vexatious comment or conduct against a worker in the workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought to know that the solicitation or advance is unwelcome." us, it does not matter wheth- er a person didn't intend to offend someone, what matters is whether the person knew or ought to have known the comments or conduct were unwelcome to the other person. Conduct that might fall into the above definitions of workplace harassment or sexual harassment may include: written or verbal insults (such as yelling, name- calling, jokes, innuendo which demeans, ridicules or offends); workplace supervision done in a demeaning or abusive manner; staring, glaring and inappropriate gestures or unwelcome physical closeness; and offering a benefit in exchange for a sexual favour. However, not all conduct is ha- rassment and the OHSA specifi- cally states that reasonable actions taken by an employer in the direc- tion of workers or the workplace is not workplace harassment. "Appropriate" circumstances e OHSA requires that any in- vestigation must be conducted in a manner that is appropriate in the circumstances — but it fails to delineate what is considered "ap- propriate." is places the burden of navigating the vague standard of what is appropriate on the em- ployer which, if not satisfied, may result in a review by the Ministry of Labour (MOL), significant ex- posure to liability by the employer and related costs. In any investigation, the person conducting the investigation must be: a licensed attorney carrying on the practice of law; a licensed pri- vate investigator under the Private Security Investigate Services Act; or company employees tasked with the investigation. Often, to ensure a proper in- vestigation, employers turn to le- gal counsel to conduct workplace investigations; however, this can be problematic as it could result in the legal counsel being con- flicted out of representing the company in any ensuing litiga- tion due to their involvement in the investigation. Additional criteria in the con- duct of an investigation is that it must be impartial, timely, fair and thorough, and the investigator must be, at the very least, arm's- length from the parties involved. e latter is crucial to avoid any real or perceived bias or favourit- ism as allegations of such a nature can undermine and erode confi- dence in the findings of what may otherwise be a valid and thorough investigation. If the MOL deems the initial investigation as insufficient or not "appropriate" in the circumstanc- es, it may require the employer to conduct another investigation using an impartial person who possesses specific knowledge, ex- perience or qualifications — at the employer's expense. It is imperative for employers to recognize that ad hoc, cursory, superficial or minimal investiga- tions — in an effort to satisfy the obligation to conduct a workplace investigation into complaints, conduct or incidents — will not be considered sufficient by the courts or MOL. Improper investigations elevate a company's exposure to liability and do not inspire confidence in employees to bring matters to their employer's attention in an effort to address such issues. Ac- cordingly, it is essential that em- ployers not only take the matters seriously but are seen to dedicate requisite attention and resources to the investigation. Outside help As is often the case, an employer is not necessarily best suited, pre- pared or has the required skills to conduct a workplace investi- gation, which results in an inad- equate, improper or inappropriate investigation. Consequently, the courts often denounce such investigations as improper, inadequate or insuf- ficient, resulting in significant li- ability exposure to the employer. Accordingly, it is a good idea to use a third-party investigator with specialized skills in work- place investigations (such as gathering evidence, interviewing witnesses and making credibility assessments). Coming from an inde- pendent party with expert knowl- edge and processes, the investiga- tor's report is more likely to sur- vive scrutiny by opposing counsel and the courts. Using a trained third-party investigator also demonstrates to employees that the employer takes the issue seriously and pro- vides legitimacy to the findings made. Additionally, in the event of litigation, the third-party investi- gative report will provide the em- ployer with the basis to support its position regarding any actions taken. Peter V. Matukas is an employment lawyer who leads the workplace in- vestigations group at Harris + Har- ris in Toronto. He can be reached at (416) 798-2722 or petermatukas@ harrisandharris.com. It does not matter whether a person didn't intend to offend someone; what matters is whether she ought to have known the comments were unwelcome.

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