Important things to keep in mind when investigating a harassment complaint
The Ontario Human Rights Code (“Code”) states that employees have the right to be free from abusive or annoying behaviour stemming from one or more grounds in the Code. Section 5(2) of the Code states the following:
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment is defined in s. 10 of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
It is important for employers to take harassment allegations seriously and to investigate any complaints promptly, thoroughly, and in a way that is fair to all of the parties that are involved. Listed below are some important things to keep in mind when investigating a harassment complaint:
1. Investigate in a timely manner: excessive delay reduces the effectiveness of the investigation
2. Ensure that the investigator is unbiased and properly trained: the investigator should not have a stake in the outcome. It may be best to hire a third-party company to complete the investigation who is, and who will be seen as objective, ensuring that there is transparency throughout the investigation process
3. Give the accused a chance to adequately respond: it is important in conducting a fair investigation that the accused is given an opportunity to defend themselves
4. Follow your own policies and procedures: failure to follow set procedures undermines the investigation unless there is a good reason to deviate from them
5. Make sure witnesses are interviewed separately: interviewing witnesses at the same time can cause them to influence one another’s statements and lead to collaboration or intimidation
6. Ask non-leading questions: leading questions are those that are phrased in a way that suggest to the witness how to respond
7. Interview third-party witnesses: many harassment issues come down to a he said/she said situation, so it is important to get written statements from any third-party witnesses where possible
8. Document the investigation: it is important for each step of the investigation to be thoroughly documented in order to avoid any issues
9. Keep an open mind: do not try ignoring the matter in hopes that it will go away or presume the accused must be guilty and overreact by terminating the employee without a proper investigation
10. Consider the entire context: where the appropriate action is for an employee to be disciplined, you should keep in mind the entire context in determining what the appropriate response to their actions should be. Remember that the punishment ought to fit the crime.
If you are an employer requiring assistance with investigating a harassment complaint or if you have been terminated as a result of an improper investigation, it is best to talk to a lawyer specializing in Employment Law when facing this situation. Please contact Monkhouse Law today to discuss your options.