Workplace Harassment Investigations: What Employers Need to Know

19 juin 2018 | Charles R. Robertson

( Disponible en anglais seulement )

Conflict between employees and misconduct by employees is a fact of employment life in most workplaces. An employer may be required to conduct an investigation into incidents and complaints of workplace harassment or violence. Applicable governing legislation in Ontario, for example, is the Occupational Health and Safety Act and the Human Rights Code. The employer’s own workplace policies must also be followed.

There may be a temptation at times, being in receipt of such allegations, for the employer to mediate a quick resolution, bring closure to the incident and get on with the business of business. This is not a good idea. In addition to the statutory legal obligation that could require a timely and objective investigation, the employer should want to know all the facts of any harassment/violence in its workplace so that it can respond in a reflective fashion that is seen by all employees as fair and thorough. All employers wanting to retain good employees, foster high morale and maintain their internal and external brand, will consistently respond to any such allegations by interviewing people, analyzing the data and possibly consulting experts.

Sometimes more art than strict science, the employer investigation would usually commence with receiving the written complaint; interviewing the complainant; interviewing the person(s) complained against; interviewing others identified by the complainant or respondent; receive all relevant documents; follow up with additional interviews as required; review all the evidence, make findings of fact and credibility; and decide if the conduct violates the law or employer policies and, if so, what action will be taken.

In deciding whether to conduct the investigation in-house or through an external investigator, the employer must realistically consider its own available expertise at hand, whether objectivity and internal perception of other employees will be an issue, cost, and timing. In any event, the employer investigation team should consist of two individuals for each and every interview. Any more could leave impressions of intimidation; any fewer doesn’t allow for proper note taking and sharing of views.

A workplace investigation following a proper and fair process, should not only be seen to credibly deal with the issue at hand but will also be the foundation of a response to any possible subsequent litigation.

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