What are an employer’s duties when investigating complaints of workplace harassment under the Ontario Health and Safety Act?
Under section 32.0.7 of the Occupational Health and Safety Act, an employer must ensure that an investigation appropriate in the circumstances is conducted into incidents or complaints of workplace harassment. To do so, investigations must be undertaken promptly (within 90 days unless there are compelling reasons why a longer investigation is required), objective, confidential, and thorough.
What transpires if an employer fails to conduct a proper investigation?
Employers often mismanage investigations. In fact, incompetent investigations or non-investigations seemingly run rampant. While such occurrences may have previously been overlooked, recent caselaw forewarns employers to do their due diligence.
In the recent case of McGraw v Southgate, the court emphasized the importance of a proper workplace investigation, awarding the Plaintiff $190,000 plus six months’ reasonable notice. McGraw centered on an employee termination without cause following rumours and allegations of inappropriate behaviour, inappropriate pictures being sent to colleagues, tension within the group, morale problems, and other inappropriate relationships. After an in-depth analysis, the court found little basis for the allegations and said the employer’s conduct, and improper investigation, was “discriminatory and reprehensible.”
McGraw serves as a cautionary tale for employers – if you are going to do an investigation, take every reasonable step to do so correctly and guarantee fairness. Otherwise, you might be required to pay some hefty damages.
How can an employer benefit from legal advice regarding harassment complaints and investigations?
Employers must treat harassment complaints seriously and ensure that each complaint is properly investigated. Accordingly, employers can benefit from legal advice to better understand their rights and obligations.
We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (647) 946-1276 today.
Author – Ciara Halloran