What Are My Rights in a Workplace Harassment Investigation in Ontario?

What Are My Rights in a Workplace Harassment Investigation in Ontario?

In Ontario, legislation like the Occupational Health and Safety Act (“OHSA”) and the Ontario Human Rights Code (the “Code”) provides protection against harassment in the workplace. Workplace harassment is considered any unwanted actions, comments, or signs that make someone feel uncomfortable, scared, or threatened at work. This can include verbal comments, physical contact, psychological harassment or sexual harassment.

The Employer’s Role

If an employee makes workplace harassment complaint, the OHSA has clear guidelines when it comes to the employer’s duties. Employers are required to ensure:

  • an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
  • the worker who was allegedly harassed, and the alleged harasser (if he or she is also a worker of the employer), are informed in writing of the results of a workplace harassment investigation and of any corrective action that has been or that will be taken as a result of the investigation; and
  • they review the workplace harassment program at least annually, to ensure that it adequately implements the workplace harassment policy.

Importantly, employers owe their employees the duty of procedural fairness throughout the investigation process. An investigation should be fair (impartial and free of biases), thorough, timely, and confidential.

Courts have found that the following can constitute errors in the investigation process:

  • Failure to obtain all the facts before making a judgment;
  • Failing to be transparent or honest with the accused employee during the investigation process
  • Failing to provide particulars of allegations to an accused employee
  • Failing to provide the accused employee with an adequate opportunity to explain or respond
  • Failing to consider an employee’s response
  • Failing to follow the employer’s own policies regarding the conduct of workplace investigations.

Importantly, an employer cannot retaliate against an employee who makes a complaint or participates in an investigation process.

The Employee’s Role

Employees have a duty to participate in the investigation process as well. Failure to do so may result in insubordination. However, while they must provide information and cooperate with investigations, they do not have an active role in the investigation. The investigation must be independent and neutral.

If the employee is a respondent of an investigation, they are entitled to a summary of the allegations. This is typically limited to the substance of the complaint, which is typically enough to fulfill the obligation to inform an employee about the complaints made against them.

When it comes to harassment workplace investigations, speaking with an experienced employment lawyer can help you understand your rights and legal options. Whitten & Lublin can help. Contact us online or by phone at (416) 640 2667

Author – Sophie Teversham

 

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