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Harassment Investigations in the Workplace: Best Practices for Canadian Employers

Oct 3, 2024 | HR Canada, Workplace

Managing a workplace can be challenging, with numerous responsibilities that demand an employer’s constant attention. One potential issue that employers face is the risk of workplace harassment complaints. Such complaints are concerning, stressful, and time-consuming, as they can potentially lead to legal complications, reputational damage, and a toxic work environment.

Despite having strong anti-harassment policies and programs, incidents can still occur, as highlighted in the #MeToo movement. The best course of action for employers if a complaint comes to light is a prompt, unbiased investigation that addresses the issue thoroughly. Note: It’s also critical for employers to maintain detailed records of steps taken as soon as the complaint becomes known. This not only protects the organization from the fallout of a poorly handled complaint but also demonstrates a commitment to fostering a safe and respectful work environment for all employees, volunteers, and clients.

Understanding Workplace Harassment

Workplace harassment typically involves engaging in vexatious comments or conduct that is unwelcome and creates a hostile work environment. Harassment can take various forms, including inappropriate comments, actions, or gestures that demean or offend individuals. It may consist of a single serious incident or a pattern of behaviour. It can consist of psychological harassment (bullying), sexual harassment, general harassment, or the creation of a poisoned work environment. 

In each province and territory, including those under federal jurisdiction, health and safety laws mandate that employers must take steps to prevent workplace harassment. Employers are responsible for ensuring that their policies align with the legal definitions and requirements in their jurisdiction. Human Rights laws also ensure that employees are protected against harassment based on any of the protected grounds. These grounds may include age, race, origin, gender expression or identity, sexual orientation, and others, and are specific to the province or territory of employment. 

First Step for Employers:

Create a Harassment Policy

A comprehensive harassment prevention policy is crucial for all employers. The key components of an effective policy should include:

  • Clear Definitions: Explicitly define what constitutes harassment based on applicable legislation in the province or territory of employment.
  • Reporting Procedures: Outline how employees can report harassment and provide alternative options if the harasser is their supervisor or someone related to their supervisor.
  • Investigation Process: Detail the steps for conducting investigations, including timelines and responsible parties.
  • Confidentiality: Emphasize the importance of confidentiality throughout the investigation process.
  • Consequences: Specify potential outcomes and disciplinary actions following an investigation.

If a Complaint Occurs:

Fairness Matters: Conducting Effective Harassment Investigations

When a harassment complaint becomes known, it is crucial for employers to conduct a thorough, fair, and confidential investigation. This process typically involves gathering evidence, interviewing witnesses, and creating a comprehensive report with findings and recommendations. Here are some key considerations for navigating harassment investigations effectively:

Duty to Investigate

Employers are legally obligated to investigate all harassment claims.While it could be that some are frivolous, this won’t be known for certain unless the employer investigates the claim. This means any claim could constitute harassment must be taken seriously and investigated thoroughly. The investigation must be fair, appropriate, and executed in accordance with legislative requirements. It’s important to consider each complaint individually as the standards for what could be considered an appropriate investigation will vary based on the specific circumstances of each case.

Ensure Employee Safety

As soon as a complaint is raised, the employer must ensure the safety of the employee who made the complaint, in accordance with the Health and Safety Act/Code of the province/territory of employment. This may involve separating the parties involved, providing temporary accommodations, or even providing a paid investigatory leave to the respondent while the investigation is ongoing. It is critically important not to disadvantage the complainant as this could be seen as reprisal for having raised the complaint. 

Appropriate Consequences

If an employee is found to have committed workplace harassment, it is essential to impose suitable punitive consequences. The severity of the punishment must align with the nature of the violation to demonstrate that the organization takes such matters seriously.

Maintain Confidentiality

Confidentiality is paramount throughout the investigation process. All parties involved must be instructed to keep the details of the investigation confidential, with clear communication regarding the consequences of breaching this confidentiality.

Investigation Process

  1. Initial Steps: Assess whether the parties involved need to be separated to ensure a safe environment during the investigation.
  2. Assigning an Investigator: Choose an impartial investigator with the necessary skills. In some cases, especially for serious allegations, a neutral third-party investigator may be the most appropriate choice.
  3. Collecting Statements: Obtain a written statement from the complainant and inform the respondent of the allegation. It’s best practice to require a written statement from the respondent as well.
  4. Conducting Interviews: Interview all parties involved, starting with the complainant, followed by the respondent, and then any witnesses. Continually assess the credibility of each individual.
  5. Collecting Documentation and Evidence: Gather all relevant documents, such as emails or text messages, and verify their authenticity and completeness.
  6. Assessment and Outcome: Evaluate the information collected, assess the credibility of the parties, and reach a conclusion based on the established process in your policy.

Investigation Don’ts

  • Avoid Promising Anonymity: Never promise the complainant or witnesses complete anonymity throughout the investigation process.
  • Suspension Without Pay: If you must suspend an employee, for instance the respondent, it is a risk to do so without pay.
  • Deviation from Procedure: Do not stray from the outlined investigation process or the investigation plan developed at the onset.
  • Interviewing vs. Interrogating: Remember that an investigation is an unbiased fact-finding mission. Always interview parties involved rather than interrogating them.
  • Decisions Based on Feelings: When making final decisions, do not base them on personal feelings or what is perceived to be in the best financial or reputational interests of the company.
  • Breaching Confidentiality: Do not compromise confidentiality when communicating outcomes to the involved parties.

Arriving at an Outcome

When determining the outcome of an investigation, rely on factual evidence whenever possible. Many allegations may result in a “this person said, versus this person said” scenario, often with limited corroborative evidence. Unlike criminal trials, workplace investigations operate on the “balance of probabilities,” meaning the outcome reflects what is more likely true based on available evidence. In cases of serious allegations, a higher standard of convincing evidence may be necessary.

All materials gathered during the investigation, including the investigation report, remain the property of the company and must be kept confidential. Access should be restricted to decision-makers only.

The investigation report should be thorough and include:

  • A summary of the allegation
  • All evidence and witnesses interviewed
  • The framework under which the investigation was conducted
  • Relevant dates, times, and locations
  • A clear conclusion, including recommendations for corrective actions

Most jurisdictions require that the outcome of the investigation and any potential consequences be communicated to the primary parties involved. This information should be conveyed in a summary of findings, which does not include the specifics of witness statements, etc.

A fair and thorough investigation seeks to protect the respondent or potential victim of harassment, ensure a just outcome, and minimize damage to the organization overall. Completing the investigation process demonstrates to all involved that your organization, and you as the employer,  take these issues seriously. Approach each investigation with care and diligence to ensure the safety and human rights of your employees and maintain your organization’s integrity and reputation.

To learn more about workplace harassment and investigations, watch our recorded webinar, Workplace Harassment and Harassment Investigations, featuring expert insights from Darcy Michaud, VP of HR Services.