#MeToo at Work

Christine Ashton

The serious concern about workplace harassment has resonated on a widespread basis. Employers are now expected to be more sensitive to the issue, and will be called to task for failing to properly prevent and respond when harassment occurs in the workplace. Employees are also becoming more aware of their expanding rights and more confident in reporting concerns. Indeed, after Bill 132 came into effect in September 2016, expanding the definition of harassment to specifically include sexual harassment, the Ministry of Labour saw a 136% increase in harassment complaints (from 903 to 2,133).

Employers must be committed to providing a safe and welcome environment for all employees. It is important to keep a watchful eye on workplace interactions and culture. An easy way to help ensure that the workplace has a healthy culture is through a company policy. In fact, such a policy and the complementing procedures are legally required for all provincially regulated employers in Ontario. The policy and procedures should clearly set out the employer’s commitment to fight harassment and that everyone plays an important role in preventing and responding to harassment.

The procedures should explain the investigation process while giving the employer some flexibility, as no two complaints are alike. For one complaint, the employer may wish for an internal person to handle the investigation, while for another complaint, the employer may desire an outside investigator to be retained. Also, some investigations may need to come to an abrupt end due to parallel criminal proceedings.

The goal is to ensure that all employees know what is expected of them and what is to be expected if there is an investigation. Employees should have guidance when asking themselves: “Is it okay to make a few dirty jokes about a new assistant if she laughs too?” Further, employees should know what to do if there has been an incident.

Who receives the complaint? Is there a formal form used to file a complaint? Is it okay to try to resolve things without a complaint? All of these questions should be answered by the policy and complementing procedures.

Even if it has been made clear that harassment will not be tolerated, and even if supervisors are alert to the signs, unfortunately harassment can still occur. When workplace harassment or sexual harassment has possibly occurred, employers must ensure that the concern is properly investigated. The first steps in the investigation process are to determine who will be investigating the matter and what (if any) workplace changes need to be implemented during the investigation. Employers should be mindful not to assume they know what will make the complainant feel safe and welcome during the investigation. Communication is the key to having a positive workplace investigation. All too often matters end up before the Human Rights Tribunal of Ontario as a result of an employee not feeling safe or heard.

As any workplace complaint may eventually end up before the Human Rights Tribunal, the Ministry of Labour or otherwise, investigations should not be handled lightly. No employer wants to have its investigator be embarrassed by their efforts when they take the witness stand.

To ensure the investigation is done properly, it should be done by a neutral person (e.g., not a person in a subordinate position to the respondent). In addition, to ensure the investigation meets expectations, the following are some general tips to keep in mind for handling the investigation meetings:

• At the outset of any meeting, make sure to remind the person of their confidentiality obligations.

• Properly record all statements with handwritten or typed notes, which may be signed by the people providing the statements.

• Avoid leading the individual; ask open-ended questions before asking specific questions.

• Make sure to get specific details about date, time, location, etc. (e.g., for how many minutes did the interaction last?).

• Clarify any subjective statements (e.g., on a scale of 1 to 10, how loudly was the comment made?).

• Ensure that all relevant documents (e.g., emails, texts and pictures) are received, and that both the complainant and the respondent have a chance to review them.

• Ensure that all possible witnesses are identified and questioned, including those who could assist in determining the timeline of events (e.g., a witness who would have seen the employee(s) leave and return after the alleged incident).

• Make sure to get what response is proposed by the complainant and the respondent (e.g., would the complainant be satisfied with training and is the respondent willing to apologize?).

• Make sure to have follow-up meetings as needed, leaving no important loose ends.

Once the investigation is completed, an informal or formal report will need to be prepared and the employer will need to decide what’s next. The report should address the scope of the investigation, the evidence, the conclusion and the proposed response. Depending on the evidence, the conclusion may not be definitive. Instead, the conclusion may be “it is more likely that” or “it is unlikely that.”

Once the report is completed, it is up to the employer to decide what to do in review of the report. If there was workplace harassment or workplace sexual harassment, the incident and possibly any workplace culture issues will need to be addressed. Even if there was no workplace harassment or workplace sexual harassment, there may still be departmental or companywide issues to be addressed.

When looking over the recent amounts awarded to employees, it is understandable that employers are fearful of the consequences of workplace harassment and workplace sexual harassment. However, we must focus on the positive, and see this as an opportunity to ensure no one comes to work afraid and everyone feels respected. A positive workspace makes for a more successful workplace.

Christine Ashton is a Partner at Wilson Vukelich LLP (www.wvllp.ca).

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This article is current as of May 2018 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. For clarification or for legal or other professional assistance, contact Wilson Vukelich LLP.