Investigating sexual harassment in the workplace

Happy Co. is a small company specializing in the production, sale and installation of custom flooring products in Ontario. Its head office, fabrication plant and retail location (the “plant”) has 20 employees. Happy Co.’s service and installation department also employs 20 employees (techs) that work off-site. At the beginning of each day, the techs must report into the plant to receive their assignments and then report back at the end of the day.
By Damien Buntsma

At the end of day on Monday, Bob (one of the techs) reported back to the plant making a complaint to the general manager of Happy Co., John, that one of the plant staff, Julie, regularly harassed him about her perception regarding his sexual orientation. Bob tells John that he feels very uncomfortable coming to work every day, as he is required to check in with Julie to receive his daily assignment, and then be subjected to her comments regarding his sexual orientation.

Damien Buntsma

Bob notes to John that he has been the victim of inappropriate behaviour, name-calling and the like from Julie for the past year, and that this has been witnessed, on a regular basis, by other plant staff. Bob doesn’t want anyone to get fired, but said that he feels humiliated and embarrassed to the point where he fears coming to work.

John is unclear of what to do about the situation, and therefore contacts Happy Co.’s employment lawyer.

At first instance, Happy Co.’s employment lawyer advises John about Bill 132, the new Sexual Violence and Harassment Action Plan Act, that came into effect in September, 2016, amending the Occupational Health and Safety Act. Under Bill 132, all employers are required to investigate any complaints of sexual harassment, which Bill 132 defines as follows:
(a) engaging in a course of vexatious comment or conduct against a worker in a 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 reasonably to know that the solicitation or advance is unwelcome.

Given the sexual harassment complaint, John is advised by Happy Co.’s employment lawyer that Happy Co. is legally required to complete a full investigation. Since John has never conducted a workplace investigation, yet alone one mandated under the Occupational Health and Safety Act, he asks employment counsel to provide further guidance.

As detailed by Happy Co.’s employment lawyer, Happy Co. needs to consider the following regarding workplace investigations of this nature:

Suspension During Investigation: Happy Co. must decide whether Julie will remain at work while the investigation is ongoing. When deciding whether to have Julie at work or on a paid suspension during the investigation, Happy Co. should consider whether having her remain in the workplace imposes unacceptable risks (i.e. continued adverse effects upon Bob), or whether suspending Julie would make it impossible for her to possibly return to work after the investigation.

Hire an Outside Party to Complete the Investigation: John is advised that the investigator conducting the investigation on behalf of Happy Co. ought to be an objective, neutral party and is told that employers often retain a third-party to complete the investigation on their behalf. Hiring a third-party investigator will also aid in insulating Happy Co. from being compelled to complete any further and better investigation by the Ministry of Labour.

Interview the Complainant and all Witnesses: Bob and all possible witnesses should be interviewed. Upon attending the interview, each participating-employee should sign a confidentiality agreement. The investigator needs to keep detailed notes of each interview.

Interview the Alleged Harasser: After interviewing Bob and all possible witnesses, the investigator should then ask Julie to attend her interview. During the interview, Julie should be presented with the allegations against her and provided every opportunity to respond.
Investigation Report: The investigator should provide a detailed report. Upon receiving the report, John should then have it reviewed by Happy Co.’s employment lawyer for a recommendation on how to proceed, based on those objective findings.

Discipline: Assuming the allegations waged against Julie by Bob are made out, Happy Co. must decide whether Julie will be disciplined, facing a range of penalties up to and including her termination of employment, for cause.

Meeting with Parties: Happy Co. must meet with the direct parties, Bob and Julie, separately, to advise them of the findings of the investigation. The conduct of the meetings and communications provided to Bob or Julie should be as tailored by Happy Co.’s employment lawyer, which will be dependent upon the circumstances, outcome and possible discipline.

Debrief: With every workplace incident comes a learning experience for the employer. Happy Co. should take advantage of this unfortunate incident by considering whether harassment training should be provided to its employees, and whether it has sufficient policies and procedures in place to address these types of workplace incidents in the future.

Given the many duties and obligations placed upon employers, especially under Bill 132, it is important for employers to seek counsel from experienced employment lawyers, at the outset, when dealing with allegations of sexual harassment.

Being proactive, seeking guidance from legal counsel before taking any action and developing and implementing necessary training, policies and procedures can result in substantial savings in company resources, time and aid in reducing legal liability.

Damien Buntsma is a partner at Brampton, Ont.-based Lawrences and heads up its Employment and Labour Law Group.
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