Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 5 clude a defi nition of harassment which the organization will use as the standard for determining if complaints that arise constitute harassment under the policy, as well as a defi nition of the workplace that includes not only the offi ce space in which employees typically engage in work-related duties but also includes off-site places where work may be per- formed as well as work events. Quick decision must be made once complaint is received Upon receipt of a complaint, or of infor- mation which the employer determines is necessary to review, the employer must determine how it will respond. The fi rst tool in this assessment will be the policy. However, every complaint of harassment is likely to involve compet- ing factors and circumstances, meaning that a customized approach will be re- quired in most cases. Therefore, it is ad- visable for employers to ensure there is suffi cient discretion built into the policy so as to reserve fl exibility to allow the organization to deal with the unique- ness of each situation. For example, the employer should ensure its policy pro- vides discretion in order to determine whether a formal investigation is neces- sary in the circumstances. If an incident is relatively minor or can be attributed to a misunderstanding or other legitimate reason — such as performance manage- ment — a formal investigation may not be required. On the other hand, a writ- ten complaint addressing more serious conduct or a situation which has already escalated between the parties may re- quire a more formal investigation. Employers should also include in the organization's policy guidelines which will assist employees in determining their own expectations and also equip employees with the tools required to at- tempt to address incidents in the work- place themselves. For example, em- ployees can be encouraged to directly approach someone in the workplace to advise that there is certain behavior that is unwelcome with the hope that the is- sue can be resolved without the need for any further process. Allow for discretion and fl exibility Employers should also ensure suffi cient discretion is built into the policy so there is fl exibility in determining how to best deal with disciplinary issues as a result of the fi ndings of the investigation. If an investigation report contains fi nd- ings that harassment has occurred that is in violation of the policy or law, the employer must take immediate steps to address the issue in order to avoid the potential of facing liability for failing to provide a safe work environment. How- ever, terminating an employee who is found to have violated the policy or law may not be required and may not be the only option in all circumstances. When deciding on the appropriate in- ternal mechanism to deal with a fi nd- ing of workplace harassment, there are a variety of factors that should be considered. For example, the severity of the act or acts of harassment, whether there are mitigating factors involved in the employee's behavior, whether the employee has engaged in previous acts of harassment in the workplace, and the employee's length of service. The policy should give the employer the ability to choose the best option in the circum- stances. While by no means exhaustive, the following are alternatives to termi- nation that may be considered where appropriate in order to rectify the behav- ior and restore the workplace: • Disciplinary letter • An apology to the complainant from the offender • Training or coaching to educate the of- fender • Suspension with or without pay • Mediation or conferences • Support, for example sensitivity train- ing • Last chance agreements Given the legal implications of dis- ciplinary measures taken in the work- place, it is advisable that employers consider their potential liability before making decisions in this regard. Developing useful policies, conduct- ing proper workplace investigations into allegations of harassment and subse- quently dealing with the fi ndings can be complex and challenging. As a result, it is important that employers continue to revisit policies and processes regularly in light of developments in the law in order to most effectively manage harass- ment and bullying in the workplace. CASE IN POINT: WORKPLACE BULLYING/HARASSENT Continued from page 4 Immediate steps must be taken to address issue About the Author Sarah Vokey Sarah Vokey is an employment lawyer with Robinson Heeney LLP in Toronto, focusing exclusively on representing employers and employees in all areas of employment law as well as conducting workplace investiga- tions. She can be reached at (416) 646-5169 or svokey@robinsonheeney.com. WEBINARS WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as attendance management, changes to the foreign worker program, accommodating persons with disabilities, and social media in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Employers may face increased liability with decisions made on faulty investigations and must be careful to ensure a proper investigation process is followed and documented.

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