Canadian Employment Law Today

Canadian HR Reporter, 2020 4 Guidelines on conducting sexual assault investigations confirmed in Ontario IN AB v. 2096115 Ontario Inc., the em- ployee alleged that her supervisor sexually assaulted her in a hotel room and she com- plained to her employer. In a criminal pro- ceeding, the supervisor pled guilty to a lesser charge of assault, admitted the allegations were true and was found guilty. The HRTO accepted the facts outlined in the sentenc- ing hearing as proven for the purposes of the proceeding. The employee alleged that when the em- ployer failed to properly investigate and ad- dress her allegations, it violated her rights under Ontario's Human Rights Code, dis- criminated against her on the basis of her sex and fostered a poisoned work environ- ment connected to her sex. The HRTO decided that the employee had experienced discrimination flowing from an unreasonable and inadequate investigation of her complaint, as well as from the investi - gator and her employer's failure to properly address her complaint, contrary to the code. It noted, as well, that pursuant to s. 46.3 of the code, any act done or omitted to be done in the course of an employee's employ - ment by an agent of the employer is deemed to be an act or thing done or omitted by the employer. Therefore, the employer was lia- ble for the actions, omissions and decisions of the agent who provided human resources services to the employer and conducted the investigation into the complaint. The Laskowska criteria re the duty to investigate The HRTO noted that its 2005 decision in Laskowska v. Marineland of Canada Ltd. es - tablished that human rights jurisprudence read the obligation to investigate the right to equal treatment in employment under the code. It followed the 10 criteria set out in Laskowska for considering whether the duty to investigate has been satisfied in a particular case: Was there an awareness of issues of dis - crimination and harassment in the work- place at the time of the incident? The evi- dence demonstrated that the employer was aware of the allegations the complainant was making about her supervisor's conduct. Was there a suitable anti-discrimination/ harassment policy? There were suitable policies in place at the time the complainant reported the harassment to her employer. Was there a proper complaint mechanism in place? The policies set out the steps to be taken in investigating allegations. Was adequate training given to manage - ment and employees? The employee did not recall being trained on the anti-violence and harassment policies or seeing them posted. However, her knowledge of poli- cies was not relevant to the issue of whether her rights were breached. What was relevant and important was that the investigator did not refer to the policies during her in- vestigation and never considered whether the employee's supervisor had violated any policies. Had the investigator followed the policy, she may have conducted a thorough and proper investigation. Once an internal complaint was made, did the employer treat it seriously? The inves - tigator did not treat the allegations serious- ly. Effectively, she did not conduct an inves- tigation. The employer provided a detailed version of what happened and, according to the policy, the investigator was required to put the employee's allegations to the super- visor and ask him to provide his own ver- sion in response. However, the investigator did not do that — she did not put the al- legations to the supervisor and ask him to respond, so she did not have two versions to compare. The investigator did not conduct a reasonable investigation, said the tribunal. Did the employer deal with the matter promptly and sensitively? In failing to con - duct a proper investigation, the investigator did not act sensitively or show respect to the employee. She advised the employee that the investigation was complete less than half an hour after the employee sent her version of events, with no details of what was con - cluded or how the investigation was com- pleted. Objectively, this would have had the effect of worsening the employee's experi- ence as an employee because, "It conveys an indifference to the complainant's situation and is a denial of her dignity." Did the employer reasonably investigate and act? The HRTO found that the investi- gator did not reasonably investigate and act. Did the employer provide a reasonable resolution in the circumstances? The employer did not come up with a reason- able resolution. The employee had to sug- gest that she not report to the supervisor when she returned to work. Evidence was not presented to demonstrate that the em- ployer considered a change to the super- visor's employment as a resolution. The employee had to come up with her own resolution to leave and take a lower-pay- ing job when she continued to encounter the supervisor in the workplace. Further- more, the investigator's suggestion that the employee turn to the employee assistance plan was not a reasonable resolution in the circumstances. If the employee chose to return to work, could the employer provide them with a healthy, discrimination-free work envi - ronment? The prohibition against discrim- ination in employment under the code af- fords employees the right to be free from a poisoned work environment. Whether a poisoned work environment exists must be considered from the perspective of an objective bystander. A poisoned work envi - ronment refers to "harassing or discrimina- tory comments or conduct that extends to CASE IN POINT: SEXUAL HARASSMENT A poorly handled workplace investigation into an employee's sexual assault complaint has led to the Human Rights Tribunal of Ontario (HRTO) providing some meaningful guidance to employers on how to conduct proper workplace sexual assault investigations. BACKGROUND BY RHONDA LEVY AND SARI SPRINGER 10 criteria used to determine whether employer's sexual assault investigation was adequate or discriminatory The employer was liable for the actions, omissions and decisions of the agent who conducted the investigation.

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