One of our employees just made a harassment complaint – now what?

Harassment, bullying, and cyber bullying remain prevalent in the workplace but there has been an increase in formal mechanisms for employees to address these issues since the end of the COVID-19 lockdown.

The National Survey on Harassment and Violence at Work in Canada is part of a partnership between Western's Centre for Research and Education on Violence Against Women and Children (CREVAWC), Faculty of Education, the University of Toronto and the Canadian Labour Congress.

The survey showed all forms of harassment and violence continue to pose significant health and safety risks for Canadian workers. The statistics show that:

• Almost three-quarters (71.4 percent) of survey respondents experienced at least one form of harassment and violence or sexual harassment and violence in the two years prior to completing the survey.
• Almost two in three (65 percent) respondents experienced at least one behavior or practice of harassment or violence at work in the past two years.
• Just over two in five (43.9 percent) of respondents experienced at least one behavior or practice of sexual harassment and violence in the past two years while at work.
• Just over one-quarter (26.5 percent) of respondents experienced at least one form of work-related online harassment in the past two years.

Harassment in the workplace and wrongdoing investigations are becoming more commonplace. The global pandemic has acted as a catalyst for organizational change. The workforce has become less tolerant of unethical misconduct, and more prone to using formal mechanisms to navigate workplace conflicts. According to HR Reporter magazine, 70 percent of employees were dissatisfied with responses from the HR team for reasons such as:

• Limited capacity
• Many HR professionals do not have any experience in investigation
• Unreasonable expectations of employees

This has led to increased reliance on legal counsel and external investigators to conduct independent and unbiased investigations. 

The harassment complaint

Making a harassment complaint can be a daunting and formidable process for the employee. The employee needs to navigate the organization’s workplace harassment and workplace violence policies and understand the mechanisms in place. They negotiate whether the risk of making a complaint outweighs silence and the ongoing harassment. 

In many cases, policies do not seem to fit the concerns of the employee. The organization may use outdated definitions of workplace harassment, discrimination, or other important terminology such as bullying, cyber bullying or lateral violence. For example, one of the workplace discrimination policies we reviewed failed to include disability as a ground for discrimination. Although the ground is protected by the Human Rights Code for that province, it meant the employee had to navigate where their complaint could be made.

Also, managers are often not aware of what constitutes harassment and their positive obligations in the workplace. This is why the lack of workplace training and awareness are significant risks in organizations.

Many policies fail to define the investigation process or emphasize the protection of employees making complaints and the procedural fairness or natural justice principles implemented throughout the investigation process.

Besides the moral obligation or organizational policy required to conduct an investigation, there is a positive obligation on organizations to conduct some form of documented investigation in cases where harassment is alleged in the workplace. For example, Occupational Health and Safety legislation, provincial or federal Human Rights Acts or Codes, and / or provincial Employment Acts, etc.

The word “documented” is critical as recording the steps taken to address the alleged conduct and observations made during the investigation protects both the employee and employer. The investigation and reporting documents the procedural fairness undertaken, whether through an informal or formal mechanism.

The investigation

Procedural fairness or natural justice simply means ensuring that all persons have a fair and equal opportunity to provide information, that information received will be confidential and discreet where possible, and that the policies and procedures of the organization are followed appropriately and fairly.

What should be done upon receiving a complaint?

• Take complaint seriously
• Act upon complaint immediately
• Ensure that there are appropriate resources to manage the parties during the investigative process
• Communicate decisions and actions taken during the investigative process

These points raise significant issues within organizations. The first and most important is that organizations need to consider if they have a plan for how an investigation will start. Other considerations for harassment investigations include: Who will be responsible for the investigation? Do we need a third party? Who holds the evidence? Do we have the experience and expertise to investigate? Are we impartial? Do we have capacity?

The external investigator

In a small organization without a dedicated HR department, it can be challenging to decide who should do the investigating. In larger organizations, external investigators may be engaged due to the capacity of internal resources, the complexity of the allegations, and perceived biases if they conduct the matter internally.

While organizations have a positive obligation to investigate incidents of harassment in the workplace, an external investigation is not required in every case. Organizations should carefully weigh the benefits or liabilities of the engagement of an external investigator with their employment law counsel.

External investigators, as contracted employees, are an extension of the organization and therefore should recognize their obligations to the company’s code of conduct, investigation process, collective bargaining agreement and any provincial or federal regulations.

Organizations should ensure that their investigators have the experience and expertise to conduct a comprehensive and impartial investigation. Investigators should be cognizant of the internal and legislative requirements of a harassment allegation.

They should also bring skillsets that are not normally available to the organization such as digital forensics, professional interviewing and transcription services, and significant experience and expertise conducting sensitive investigations. 

Outcomes

A well planned, well researched, and fair investigation process will provide the organization with defensible decisions in the resolution of a complaint. While an organization cannot fully satisfy all participants in the process, they must be confident that they can rely on the findings of the investigation to implement ethical management decisions.

Complainants and respondents have a right to access the results of the investigation. While they do not necessarily have a right to the full completed report, the results and rationale for the decisions should be available to them.

Harassment complaints are rife with workplace culture concerns, historical interactions, and interpersonal complexities which although not apparent at the outset of the complaint can be addressed by careful planning and an impartial investigative process.

Developing these processes can ultimately ensure the success of your organization:

• Update current policies and procedures on workplace harassment and workplace violence
• Create a clear and concise complaint and investigation process
• Address complaints quickly and document the results
• Take appropriate action to deter harassment in the workplace
• Provide training and education to managers and employees
• Provide feedback and communications of the culture expected of employees

Contact us

For more information on how to handle workplace misconduct, contact Lisa Majeau Gordon, National Leader, Forensics and Litigation Support at 780.453.5375 or [email protected] or Michael McCormack, Senior Manager, Investigative and Forensic Services at 780.733.8673 or [email protected]