In the face of unprecedented attention to work related harassment and discrimination, prudent employers will seek to minimize workplace issues as part of their overall obligation to provide a safe and healthy workplace. It is also the right thing to do.
Part of that strategy is to investigate complaints or incidents in a timely, thorough and objective manner in accordance with legal duties. A failure to do so may result in additional liability or sanction under common law or statute.
But when is an employer’s duty to investigate a workplace complaint triggered? The answer to that question bears careful consideration and carries with it potentially significant consequences.
Every employer and every human resource professional has heard some variation of the following:
“Mary doesn’t say hello to me in the morning”
“Dave never smiles at me…he just ignores me”
“John hurt my feelings…he told me he doesn’t like the colour of my new coat”
Not everything employees complain about requires an investigation.
The Duty to Investigate
The duty to investigate workplace harassment or discrimination arises under the Ontario Human Rights Code (“OHRC”) and/or the Occupational Health and Safety Act (“OHSA”).
OHRC caselaw establishes and imposes a legal duty on employers to investigate workplace harassment or discrimination (based upon prohibited grounds). That duty may be triggered by a complaint received (verbal or written) or it may be based upon conduct observed by the employer or upon information received from a third party.
That duty to investigate was expanded under the OHSA as it relates to workplace harassment. Section 32.0.7(1)(a) provides that every employer shall ensure that “an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances”. More specifically, the Ministry of Labour’s “Code of Practice” (Workplace Harassment) suggests the duty to investigate is triggered in either of the following ways:
1. by complaint received (verbal or written); or
2. by knowledge of an incident (i.e. conduct witnessed by a superior or based upon information received from a third party).
In either case, employers can no longer ignore evidence of harassment or discrimination in the absence of a “formal” complaint. Turning a blind eye to information that speaks to harassing or discriminatory conduct simply because a “complaint” has not been made is not a defence.
To Investigate…Yes or No?
Not every employee complaint dictates a formal investigation under the OHRC and/or the OHSA.
As a first step the complaint (or information received) must have a minimum level of substance. Bald or generic allegations are not enough. A complaint must include particulars or details (who, what, where and when). For example, if Jack says that “Jennifer harassed me” but is unable to provide any details or particulars to support his generic complaint there is no need for full investigation. That said, a prudent employer or human resource professional, having received a generic complaint will press for additional details before concluding the complaint does not warrant further review or investigation.
As a second step, employers must verify that the complaint relates to a violation of the OHRC (harassment or discrimination based on a prohibited ground) or the OHSA (harassment, including sexual harassment). For example, if the details received speak to a course of inappropriate conduct explicitly sexual in nature, you don’t need your employment lawyer to tell you to conduct a full investigation. On the other hand, if the substance of the complaint is entirely unrelated to harassment or discrimination, as defined under the OHRC or the OHSA, there is no duty to investigate but you may wish address the underlying issue as a matter of good human resource practice.
Employer Take Away
Employment law on this issue will continue to develop. However, best practice for every employer includes the following:
● Take every workplace complaint seriously and in good faith. Do not dismiss complaints outright without any consideration.
● Recognize the scope or scale of the complaint may change upon review. What may first appear as a generic complaint might, in fact, have substance.
● Recognize that complaints or information may come in the “back door”. You could be investigating employee misconduct only to have the employee under investigation allege some form of discrimination based on a prohibited ground. You need to assess whether that allegation requires full investigation.
● Document everything. Notes and records of any complaint received or information obtained must be maintained – even if determined that an investigation is unwarranted.
● Don’t delay. Deal with the complaint in a timely manner.
● Simply because the “complainant” or the “accused” is no longer employed does not alleviate the legal duty to investigate.
● Err on the side of caution. If there is any “grey” between the “black” and the “white” you are best served to initiate an investigation. There are serious consequences for failing to conduct an investigation where there exists a legal duty to do so.
● Understand that the duty to investigate under the OHSA requires an employer to conduct an investigation “that is appropriate in the circumstances”. In some cases that might mean less formal than otherwise.
● Get sound legal advice from an experienced employment/labour lawyer.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.