November 20, 2014 By: Janice B. Payne
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The scandal surrounding former CBC host Jian Ghomeshi has brought the issue of workplace sexual harassment back into the spotlight in Canada. The ensuing discussion has provided some valuable reminders to employers about the importance of handling harassment complaints effectively.

Despite the legal protections that have been put in place to protect employees from workplace harassment, including those found in human rights and occupational health and safety legislation, which require employers to provide employees with a safe and respectful working environment, systemic barriers to reporting these incidents remain. This is especially the case where a power differential exists between a harasser and the target(s) of the harassment, or where an employer has an economic incentive to overlook allegations about an influential employee. Employees in entry level positions are particularly vulnerable to harassment, where lack of work experience and confidence, as well as fears of job loss or “career suicide” are likely to create a reluctance to come forward and report the abuse.

Establishing a Culture of Respect

Before any investigation takes place, employers must lay the groundwork to ensure that barriers to reporting harassment are removed. This begins with creating a culture of respect for differences of all kinds that should start at the very top of the organization with a strong commitment from the senior leadership team, and should include proactive training on respect, discrimination, harassment and workplace violence at all levels of the organization. It should be very clear to employees that abusive behaviour of any kind will not be tolerated. It is also essential for employers to have clear policies and procedures in place to deal with complaints of workplace harassment. These are legislatively required in Canada, and must be followed consistently by the employer. In unionized environments they are likely to take the form of grievance procedures, which are incorporated into the collective agreement.

Five Tips for Employers

In order to overcome systemic barriers and encourage reporting, employers must commit to handling investigations properly. As with so many things in the Workplace, effective communication is the key to success. Here are five tips for employers to keep in mind when conducting workplace harassment investigations:

  1. Take Reports Seriously and Respond Promptly

  2. Choose an Appropriate Investigator

  3. Understand Limits of Confidentiality and Privilege

  4. Ensure Investigations are Reasonable and Procedurally Fair

  5. Document Investigations and Take Action

We’ve provided more information about each of the five tips below.

1. Take Reports Seriously and Respond Promptly

In order for an investigation process to be effective, it is important that employers treat every report as legitimate, and take some action in relation to every complaint. This demonstrates the employer’s commitment to both its workplace policies, as well as to its investigation process, and gives employees confidence that these will be consistently enforced. Reports should be received by a Human Resources professional who has the communication skills and training necessary to create a safe and comfortable reporting environment for employees coming forward.

The appropriateness of an employer’s response to a report of harassment will depend on legislative requirements and the employer’s policy, as well as the severity of and circumstances surrounding the allegations. In some cases, it may be necessary to separate the parties by placing them on different shifts or teams (without prejudicing the complainant) during an investigation. In others, it may be preferable to remove the respondent from the work environment and place them on leave with pay.

It is important that employers respond promptly to complaints in order to minimize risk of further harassment, reduce the impact and strain of the investigation on the parties involved, and avoid prejudice to either party through loss of evidence.

2. Choose an Appropriate Investigator

Once it has been determined that a formal investigation is required, the next step for an employer is to choose an appropriate investigator. Investigators can either be internal or external, depending on a variety of factors including the nature of the complaint. If the investigation is likely to involve a high profile individual within the organization, media attention, or litigation, it is best to engage a competent external investigator. Regardless of where he or she comes from, investigators should always be objective, impartial and properly trained in investigative techniques. Investigators should also have a good understanding of the employer’s policies and procedures.

3. Understand Limits of Confidentiality and Privilege

While it is important to preserve confidentiality as much as possible for all parties involved, it is important to be transparent with the complainant that complete confidentiality surrounding a complaint is not possible. In most cases, the information will need to be revealed to other members of the employer’s leadership and HR team on a need to know basis. The investigator will also need to speak with any witnesses, and the respondent is generally provided with sufficient particulars of the complaint so that he or she is able to respond. In addition, there are certain situations where an employer may be legally required to divulge information obtained during an investigation to the police or other regulatory authorities. In order to maintain the integrity of the investigation, it is also important to remind the parties involved of the importance of confidentiality.

An employer can attempt to assert solicitor-client privilege over an investigator’s report. However, this protection is not automatic and is subject to some debate, especially where in-house counsel is involved, as he or she may have functions outside his or her legal role within a business. In order to have the best chance of doing so, the employer’s counsel should retain the investigator, or the investigator retained should be legal counsel. It must be established up front in communications with the investigator, as well as in the retention letter and final report, that the purpose of the investigation is to provide legal advice to the employer. In addition, the report should be provided directly to either to the counsel that commissioned it, or to the employer, and should not be widely distributed.

4. Ensure Investigations are Reasonable and Procedurally Fair

Because of the potential for serious consequences for all of the parties involved, it is important to ensure that an investigation is reasonable and procedurally fair. This will make it more likely that the parties will accept the result. Both the complainant and respondent should be informed of the investigation process and likely timelines. The respondent also has a right to know the allegations that have been made against him or her and to respond in full unless there are genuine concerns that doing so would prejudice the investigation. Any potential witnesses that are brought to the investigator’s attention should be interviewed, and any evidence that comes to light carefully reviewed. No decision should be made in an investigation without first taking the time to fully consider and analyze all of the evidence available.

5. Document Investigations and Take Action

An investigation should be properly documented, and all evidence used in support of it, including electronic records should be secured in a central location. It is best to obtain a complaint in writing, usually in a complaint form created for this purpose. The terms and scope of the investigator’s mandate should be established in writing prior to the investigation. Detailed witness statements should be recorded carefully and accurately by the investigator, which should be reviewed and signed by the witness if possible. Once the investigation is complete, the investigator should produce a final report including a summary of the allegations, the investigation process, the evidence obtained and reviewed, witnesses interviewed, an analysis of any inconsistencies, and findings supported by evidence. The investigator and employer should agree in advance as to whether recommendations will be provided within the report. Finally, a written record of any action taken following the investigation should be retained. 

Following the conclusion of an investigation, the employer will need to determine what action to take, if any, based on the findings in the report. In severe cases, the investigation may reveal behaviour of a criminal nature, and the employer will need to determine if a report should be made to the police. In the event that a complaint is unsubstantiated, no reprisal should be taken against the complainant unless there is very clear evidence that the complaint was fraudulent "made in bad faith or malicious. Both the complainant and respondent should be advised of the outcome of the investigation in writing, and there may also be a legal requirement to report the outcome of the investigation to a government regulatory body.

Benefits to Employers in Handling Investigations Well

The recent Court of Appeal for Ontario decision in Boucher v. Wal-Mart Canada Corp., in which a manager was found to have belittled and humiliated an employee in front of other employees after she refused to falsify a log, provides a clear reminder to employers that significant aggravated and punitive damages can be awarded when a harassment report is not handled appropriately. The employer in this case failed to follow its investigation process or to take sufficient action in response to her complaints, despite witnesses to the manager’s abusive behaviour. The Court upheld the award of $200,000 in aggravated damages, and $100,000 in punitive damages against the employer, in addition to damages awarded against the manager.

The benefits to employers in handling investigations well include increasing the likelihood that the findings of the investigation will be accepted by the parties involved, minimizing the risk of litigation, and protecting the employer’s reputation. There is also an economic incentive for employers to maintain a safe and healthy work environment, in terms of increased productivity and morale, as well as decreased absenteeism, sick leave and turnover, all of which can be costly.

Janice Payne was interviewed on this subject by Steve Mertl of the Daily Brew for his article, Ghomeshi scandal: How workplace culture and power enables harassment, which was published on November 6, 2014.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law