Canadian Employment Law Today

Canadian HR Reporter, 2020 create an overall impact on the workplace that is intolerable, hostile, negative for the employee and is a condition of the employ- ment." Using an objective standard, the employee was not free from a poisoned work environment for the following rea- sons: • The employer failed to consider how to avoid having the supervisor interact with the employee and allowed him to continue to do so, creating an intolerable atmosphere at the employee's workplace. As it was a condition of employment that she endure this poisoned atmosphere, she removed herself and sought other employ - ment that paid less. • Upon making inquiries of the investiga- tor after leaving her employment, the complainant received dismissive and insensitive responses to her inquiries. Did the investigator communicate its find - ing and actions to the complainant? The investigator's own evidence was that she nev- er communicated her findings or the details of any action taken as a result of the inves- tigation to the employee or her supervisor. Bottom line for employers The decision in 2096115 Ontario puts em- ployers on notice that, in order to conduct a thorough and proper workplace sexual assault investigation that does not violate a complain- ant's rights, they should ensure that: • They have a suitable anti-discrimination/ harassment policy in place that contains a proper complaint mechanism and out- lines the steps to be taken in investigating allegations and ensure that employees and management receive adequate training on the policy. • During investigations, investigators refer to the employer's policies and consider whether the accused individual violated any of them. • Investigators treat the complainant's al - legations seriously. If the applicable policy so provides, the investigator should put the complainant's allegations to the indi- vidual under investigation and ask them to provide their own version in response. This will provide the investigator with two versions to compare and weigh. • Investigators act sensitively and show respect to complainants. They must not convey indifference to complainants or deny them their dignity. This requires more than merely advising a complain - ant that the investigation was completed, with no details of what, if anything, was concluded or how the investigation was completed. • Complainants are presented with reason - able resolutions and are not expected to come up with their own. Suggesting that a complainant turn to an employee as- sistance plan is not a reasonable resolution when an employee may be experiencing emotional distress in the workplace due to sexual harassment or assault. • If a complainant chooses to return to work, that they provide them with a healthy, discrimination-free work envi - ronment. The employer should ensure an absence of harassing or discrimina- tory comments or conduct, avoid having the alleged assaulter interact with the complainant and ensure that the com- plainant's inquiries are not dismissed or treated insensitively. • The investigator communicates their findings and the details of any action taken as a result of the investigation to the complainant. Failure to follow these guidelines could lead to unreasonable and inadequate in - vestigations of workplace sexual assault complaints and discrimination against com- plainants on the basis of their sex. For more information, see: • AB v. 2096115 Ontario Inc. C.o.b. as Cooksville Hyundai, 2020 HRTO 499 (Ont. Human Rights Trib.). • Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30 (Ont. Human Rights Trib.). December 16, 2020 | Canadian Employment Law Today CREDIT: JIRAPONG MANUSTRONG iSTOCK ABOUT THE AUTHORS Rhonda B. Levy is a knowledge management counsel for Littler LLP in Toronto, monitoring legislative, regulatory and case law developments. She can be reached at (647) 256-4545 or rlevy@littler.com. Sari L. Springer is office managing partner for Littler LLP in Toronto, specializing in employment law and higher education law. She can be reached at (647) 256-4509 or sspringer@littler.com.

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