Five Good Ideas

Five Good Ideas about workplace harassment

Published on 26/01/2021

Workplace harassment complaints can cause significant organizational unrest, loss of reputation and damage to employee morale, in addition to considerable legal liability. In this session, Kristen Pennington, Partner, Employment and Privacy Law at McMillan LLP, discusses meaningful ways an organization can prevent workplace harassment to avoid such complaints, as well as minimize disruption in the event a workplace harassment complaint is received. Topics include how to develop and implement effective workplace harassment policies and procedures, and how to prepare to make key decisions if a complaint is made.

Legal disclaimer
The video, text, podcast, and transcript are provided for general information purposes only. They are neither intended as, nor should be considered, legal advice. Readers, viewers, and listeners are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted. © McMillan LLP 2021.

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Five Good Ideas

  1. Make your workplace harassment policy a living document
  2. Implement ongoing and dynamic training
  3. Remove barriers to making complaints
  4. Assemble your investigation team
  5. Demonstrate leadership buy-in

Resources

Podcast


Full session transcript

Note: The transcript has been edited for clarity.

Elizabeth – I would like to begin today’s session by acknowledging the land where we live and work, and recognizing our responsibilities and relationships where we are. I’m speaking to you from Toronto, but as we’re meeting and connecting virtually today, I encourage you to acknowledge the place you occupy.

I am, and Maytree is, on the historical territory of the Huron-Wendat, Petun, Seneca, and, most recently, the Mississaugas of the New Credit Indigenous Peoples. This territory is covered by the Dish With One Spoon Wampum Belt, an agreement between the Haudenosaunee and the Ojibwe and allied nations to peaceably share and care for the lands and resources around the Great Lakes.

Today’s Five Good Ideas are about workplace harassment. Workplace harassment complaints can cause significant organizational unrest, loss of reputation, and damage to employee morale, in addition to considerable legal liability, and most importantly, personal harm.

In this session, Kristen Pennington, Partner, employment and privacy law at McMillan LLP, will discuss meaningful ways an organization can prevent workplace harassment to avoid such complaints, as well as minimize disruption in the event a workplace harassment complaint is received. Experienced in all areas of employment law, Kristen advises employers on hiring and dismissals, employment contracts, performance management and discipline, employment policies, and human rights laws.

An area of particular expertise for Kristen is assisting employers in developing and implementing effective workplace discrimination, violence, and harassment policies and programs, and managing workplace complaints. She also provides training on workplace investigations, employee accommodation, management of conflict in the workplace, and the handling of employees’ personal information.

For Kristen’s full bio and details about today’s session, please download the handout. We put the link to it in the chat box. On the handout, you will also find today’s Five Good Ideas and resources. Please note that today’s webinar is provided for general information purposes only. It is neither intended as nor should be considered legal advice. Viewers are cautioned against making any decisions based on the material alone. Rather, a qualified lawyer should be consulted. And with all of that said, let’s get to the meat of the matter, and please welcome Kristen.

Kristen – Good afternoon, everyone. I’d like to thank you for joining me on this very snowy afternoon here in Toronto for this installment of Maytree’s Five Good Ideas program. I’m so appreciative of all of the hard work that the Maytree team has put into making today’s session possible. This organization has really shown a truly commendable effort to continued education, even during these strange times, and I’m really grateful for the opportunity to be with you, at least virtually today, to discuss a topic I’m particularly passionate about, and that’s preventing workplace harassment and making harassment complaints easier to manage for your organization.

I’m generally going to be gearing my comments today towards non-unionized employers in Ontario who are provincially regulated, which is the majority of employers in Ontario. However, if one or more of those qualifiers doesn’t apply to you or to your organization, I think you’ll still benefit, hopefully, from some of my ideas about how to prevent workplace harassment in your own organization, and how to make dealing with a harassment complaint easier to manage if one arises.

As Elizabeth mentioned in her opening remarks, to the extent you have any developing or ongoing workplace situation that could involve potential harassment, I always recommend that you seek legal advice that is tailored to your specific circumstances.

When we talk about workplace harassment, I think it’s helpful to first briefly chat about what workplace harassment is, and where our obligations as employers come from in relation to workplace harassment.

The first place we look to in Ontario is the Occupational Health and Safety Act, or the OHSA, and that generally prohibits workplace harassment and places certain positive obligations on employers to both prevent and investigate instances of workplace harassment. Most other provinces have similar workplace health and safety legislation that also prohibits harassment and imposes a corresponding duty on employers to investigate incidents of potential harassment.

The OHSA defines workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This definition specifically includes sexual harassment in the workplace. So, harassment can involve a course of conduct over a period of time, but it can also result from a single incident in some cases.

When we think about workplace harassment, it can include a number of different behaviours, for example, unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating, or demeaning to a worker or a particular group of workers in the workplace. It can also include behaviour that intimidates, isolates, or even discriminates against a worker or a group of workers.

And that ties into the second source of obligations for employers regarding workplace harassment, which is human rights legislation.

In Ontario, that would be the Human Rights Code, although other provinces generally have equivalent legislation with very similar concepts. Under the Human Rights Code, members of certain protected groups have a right to be free from harassment in employment. Protected grounds under human rights legislation vary a bit from province to province, but they generally include characteristics like an employee’s disability or perceived disability, race, gender, sex, and sexual orientation, among others. I know these concepts will be very familiar to many of you in the course of the important work that you provide to our communities.

The right to be free from harassment in the workplace has generally been interpreted as placing both a positive onus on the employer to prevent that harassment, but also to investigate and remediate any harassment that’s based on protected grounds.

Idea #1: Make your workplace harassment policy a living document

With that bit of background in mind, let’s jump into my first idea about preventing and addressing workplace harassment, and that’s making your workplace harassment policy a living document. The OHSA requires an employer in Ontario to develop a workplace harassment policy and a program to implement that policy. Where your workplace has six or more workers generally, the policy and program need to be in writing, and they need to be posted in the workplace where workers are likely to see them.

The contents of the policy and the program are generally prescribed by legislation, and I don’t intend to cover that exhaustively today. What I do want to talk about is that too often I see employers have a set-it-and-forget-it attitude towards these policies and programs. They put in place a workplace harassment policy and program, they meet the posting requirement under the legislation, and then they promptly forget to look at those documents ever again, and that’s problematic for a number of reasons.

Firstly, regular updates to the harassment policy and program are usually mandated by law. In Ontario, for example, the program needs to be reviewed as often as necessary, but at least annually, to ensure that it adequately implements your workplace harassment policy.

What also inevitably happens is, over time, your organization changes. People come and go, and the contact people that you may have listed in your policies may no longer be with the organization. That can leave an individual who’s experiencing workplace harassment wondering who they should be contacting.

Reorganizations also inevitably happen, and duties and responsibilities can change. Where one person or group may have previously been responsible for investigating complaints at your organization, this could now be handled by a different person or a different group entirely.

Sometimes your organization will have weathered a complaint or an investigation process, and that can lead to a finding that new or different measures are needed to prevent workplace harassment effectively in your organization.

Finally, you may also have been through an investigation and realized that there are parts of your investigation process that don’t really work, that are impractical, or that haven’t evolved with your organization over time.

A common example that I see are timelines set out in workplace harassment policies or programs that aren’t prescribed by law, but that really tie an employer’s hands to complete certain stages of the investigation within, for example, a 24-hour or 48-hour period. You’re really limiting yourself, and may find after an investigation that it’s not actually practical for your organization to meet that timeline. Having completed an investigation, you may realize that your commitments to employees and your policy really need to be adjusted.

For these reasons, I say it’s important to reject the set-it-and-forget-it attitude to your workplace harassment policy and program, and treat them as living documents that are in constant need of review, revision, and improvement as your organization and the law evolve.

A good starting point there is to set a date to review and update these documents at least annually. I recommend that you sync this review up to another annual date that you’re sure not to miss, like issuing T4s to your employees, for example. Assign this task to a member of your team now to spearhead and take ownership of, and have them diarize this annual date in their calendar.

Remember also to review your policy and program anytime there’s a material change to your workforce, restructuring within your organization, or any changes to applicable laws. I also recommend reviewing and considering the workplace harassment policy and program at the conclusion of every harassment investigation. Consider what worked within your investigation process, what didn’t, and what additional steps your organization may need to take to prevent similar incidents of workplace harassment down the road.

Idea #2: Implement ongoing and dynamic training

That brings me to my second idea about preventing and addressing workplace harassment, which is implementing ongoing and dynamic training. This idea comes from employers’ legal obligations. In Ontario, for example, an employer has to provide appropriate information and instruction to workers on the contents of its workplace harassment policy and program.

Many employers I’ve seen purport to satisfy this obligation by placing a copy of the workplace policy and program in front of a new employee, making them read it, and requiring them to sign an acknowledgement that they’ve read it. Maybe they are also required to watch one or two short videos, or to attend a boilerplate training session about workplace harassment. At this point the employer then calls it a day on the training front.

Don’t get me wrong, you should absolutely take all of those steps. You should have your employees, particularly new employees, review and sign an acknowledgement that they’ve read your policy and program, and you should complete that step every time it’s updated. This can be really important if you later need to rely on your policy or program to discipline an employee or to otherwise address a complaint of workplace harassment in your organization.

But I say treat training as an opportunity for your organization to reflect the importance of the issue of workplace harassment to your organization. Employees will watch how you handle workplace harassment and how you talk about it. It tells them how committed the organization is to actually preventing and addressing workplace harassment.

If employees have the sense that you’re just plopping a policy down in front of them or making them watch an old movie to tick a box and move on, they’re less likely to take the consequences of workplace harassment seriously. They will also feel less comfortable bringing forward a claim or complaint of workplace harassment if they themselves are being mistreated in your workplace.

So, I say, make your workplace harassment training an ongoing and an interactive process. Schedule lunch-and-learns to talk about workplace harassment and to solicit your employees’ feedback, questions, or concerns about your policies and procedures in this respect.

You can also consider inviting qualified guest speakers to come in and talk about workplace harassment or discrimination issues. Everyone benefits from being part of a network of organizations that do this work, and do this work really well. Draw on resources within that community to bring in different speakers and people who have this expertise to keep it fresh for employees.

Focus on discussing realistic examples of workplace harassment and discrimination, like microaggressions. Move away from training that just prohibits employees from engaging in workplace harassment, without actually educating them on the roots of workplace harassment. Help them understand the different ways that they may be contributing to a workplace culture that’s fostering harassment, even without even realizing it.

The idea is to make workplace harassment part of an ongoing conversation. What this does is it removes the taboo around the topic, and it begins to make anti-harassment work part of your workplace culture. That in turn makes employees more self-aware of their own behaviour, and it also empowers them to bring forward any questions or complaints that they may have.

Lastly, if your training isn’t specific to your workplace and to employees’ roles, it’s also not particularly impactful. Schedule a special training for managers, supervisors, and people who are on the ground supervising your employees. This training should have a particular focus on how to escalate a harassment complaint or an incident if they become aware of one. You also want your training to be inclusive, so make sure it’s taking place at a time when your part-time workers and your volunteers are also present. Depending on the makeup of your workplace, consider providing that training in a different language other than English, or in a format that’s accessible to any of your employees who are living with disabilities.

Finally, always remember to maintain records of the training employees complete, like sign-in sheets, as this can be important documentation in the event of a harassment-related claim or complaint down the road.

Idea #3: Remove barriers to making complaints

My next piece of advice is to make a genuine effort to remove barriers that may prevent your employees from bringing forward workplace harassment complaints. Part of that is making sure that you’ve satisfied the posting requirements, and that your harassment policy and program are easily accessible to your entire workforce.

During COVID-19 times, when your employees may be working from home or not in the office regularly, that should include making the policy and the program available electronically, like on a shared drive or on an intranet system.

Another common barrier to bringing forward complaints, particularly within small organizations, is the fear of bringing forward a complaint that involves either someone in human resources, or in a senior position within the organization. Employees don’t know who to turn to when the person who should be handling their harassment complaints is the person who they think is mistreating them.

So, my other tip is that your harassment policy and program should clearly set out the person to whom complaints should primarily be brought forward, but your policy should also have a second contact, in the event that the employee does not feel comfortable bringing forward their complaint to the primary contact. That secondary person could be, for example, another member of senior management, of human resources, or even somebody on your board, depending on the makeup of your organization.

Finally, another barrier to receiving complaints is if employees hear about other complaints being mishandled, or not being taken seriously, or if employees are unclear on what will happen after they complain. So, it’s really important that both the primary and the secondary contact who are listed in your policy for receiving complaints be specifically trained on how to appropriately escalate those complaints, and initiate the investigation process. That way, your organization complies with its own investigation policies, its own harassment policies and programs, but there is also transparency for employees. They will know what will happen next, and what to expect if they do bring forward a complaint.

Idea #4: Assemble your investigation team

That brings me to my fourth suggestion, which is to assemble your investigation team now, instead of waiting to receive a complaint. In my experience, once a harassment complaint is received, things start to move really quickly. This can particularly be the case if the complaint involves a member of your senior leadership or management, or if it otherwise could be of public interest or receive media attention.

Inevitably, you are going to need a team of people to handle a workplace harassment complaint. First, you’ll need an internal team that is going to reach those initial critical decisions about opening an investigation, and will conduct the investigation itself. This team will determine what other supports will be needed to see the organization through the complaint, the investigation process, and the aftermath of the complaint.

My suggestion is to keep that net small. The more people within the organization who know what’s happening and the details of the complaint, the more likely the confidentiality of that investigation is going to be compromised. This can be devastating for both the complainant and the respondent. It really erodes the trust of the witnesses and the other parties in the investigation process. It can also have a chilling effect on the likelihood of other employees bringing forward their own complaints.

Apart from your small internal team, who else might need to be on your team in the event of a complaint? Well, you might need legal counsel to help you determine the scope and the type of investigation you need to conduct, and to assess whether any interim safety measures are required.

Think of things like separating the complainant and the respondent, if there is a reporting relationship there, or even implementing a leave for one or more of the employees who are involved in the investigation. You and your counsel might also determine that you need to engage an external investigator. This could be another person who forms part of your team.

You might also need to engage communications or crisis management professionals, depending on your team’s own skillset, the nature of the complaint, and the potential public interest in that complaint. You might want to offer employees or others involved in the investigation with access to your employee assistance plan, if you have one, to receive confidential support and other wellness services.

Having guided organizations through a number of these investigations, I can tell you the time to be asking around for referrals, for reviewing rates and retainer agreements, and trying to coordinate different members of your team is not when you’re faced with a really complicated or time-sensitive harassment complaint.

I propose assembling your team now, and assembling them early, when the pressure isn’t on you to respond to a particular complaint. I’m not suggesting that there’s any need to sign a retainer agreement, or enter into any form of agreement now. Just have a list of names, a sort of roster of who your team could be, and contact information for those members easily available to you in an organized place, in case you do need them on an urgent basis. That will reduce the immediate impact of a complaint in your workplace, if you receive one.

Whoever is going to be on your small internal investigation team should know where to find this information. There should be a clear delegation now of who will ultimately be responsible to contact and engage different team members as needed if a complaint is received.

Idea #5: Demonstrate leadership buy-in

Finally, my last piece of advice is to demonstrate leadership buy-in when it comes to preventing, investigating, and addressing workplace harassment. It might sound trite, but we’re past the stage of just crossing our fingers and hoping that harassment won’t strike in our workplace. Leaders really need to be outspoken about condemning workplace harassment, and they need to be intimately involved in all of the prevention activities that are happening in the workplace.

For example, senior management or leadership of your organization should be sitting in on those lunch-and-learns, and participating in the other harassment training, so that they’re part of the ongoing discussion. Then employees will understand that leadership also plays an important role, and this isn’t simply an HR problem that doesn’t affect the upper tiers of your organization. Leadership buy-in also involves demonstrating accountability in the event workplace harassment does occur, especially at the senior level, and that can be really challenging.

Your best efforts to prevent workplace harassment and to encourage employees to bring forward complaints aren’t going to be successful, and they aren’t going to be effective, if employees perceive that complaints aren’t taken seriously by management. Nor will they be if all employees aren’t treated or held to the same standard regarding workplace harassment.

I want to thank you again for the opportunity and thank Maytree for the opportunity to share some of these thoughts and ideas about preventing and investigating workplace harassment. We’re going to turn to a question period right now, so I’m really looking forward to engaging with you and to answering any questions that you may have on this topic.

Elizabeth: Well, I want to take the opportunity to say thank you to you, Kristen. That was terrific, and we already have people in the chat saying that was so great, and so helpful, and such good advice. Let’s take it from there, and there are a couple of questions that just go immediately from that. Very first one is, “Are these, the Five Good Ideas and some of the resources, are they available after the webinar?” In fact, you have compiled resources that are, there’s a link to it, I think, in the chat room. Is that correct? So, we have some of these resources available, right?

Kristen: Yes, yep.

Elizabeth: Great, and just picking up, this was a question that was in the chat room and I think it’s moved into the Q&A, and it’s picking up on the question of external investigators. So, beginning there, when an external investigator is used, what happens with their findings? Are they made public? Are they only revealed to those involved in the claim? Does the entire workplace have access to it? What’s the access question?

Kristen: Really great question. To some extent, it depends, which is a lawyer’s favourite answer. It depends to some extent on the laws in your province. For example, in Ontario, there are certain obligations for the employer to share the results of the investigation with both the complainant and the respondent, and that’s actually set out in the legislation in the Occupational Health and Safety Act, and also in various guidance that flows from that. You should always consult the legislation as the first step to understand what your legal requirements are, in terms of what you need to tell the participants in the investigation.

It also depends on your own policies and procedures around investigations. If you’ve committed to providing certain results or outcomes to a complainant or a respondent, generally you need to comply with your own policy or program. That’s another reason why you should constantly be evaluating your program, to see if it’s workable, and to see if you’ve run into issues in an actual investigation with having to over-disclose more information than you otherwise would have preferred to share with participants.

Another key factor is what has the external investigator been engaged to do. In some cases, you are engaging an investigator in a purely fact-finding exercise, and that could be at an organizational level even. It doesn’t necessarily have to be in the context of a complaint, but maybe you’ve called an investigator in to speak to members of your workplace, and to discuss ways that you can improve accessibility or diversity or harassment issues.

Then from the outset, you might go in eyes wide open as an organization understanding that, good or bad, those findings might be shared with the board or might be shared with the broader organization. Generally, if it’s resulting in, or the idea is that the investigation will result in some form of legal advice for the employer and the organization about next steps, that’s something that needs to be considered right at the outset of retaining the external investigator. This ensures that you’re not offside of any legal privilege, or you’re not accidentally breaching any privilege that you’re hoping will attach to those results.

So it is very fact-dependent, it depends on the nature of the investigation, your legal obligations, but absolutely something that needs to be considered right at the outset of engaging the external investigator. Then the investigator also understands the scope of their mandate, and doesn’t start doing more or less than what you’re hoping they’ll accomplish with the investigation.

Elizabeth: Great, there are a few more questions digging into investigations. I think people are very curious about that, but before we do that, there was an early question that asked about whether or not there are significant gaps between the Ontario workplace violence and harassment laws and the new federal legislation. Are there any conflicts if the requirements if an employer chose to use the federal law as best practice? How do you determine which one you need to be compliant to, or is that super clear?

Kristen: It’s governed by legislation, so if you’re a federally regulated organization, generally you’ll know that because you’ll be complying with the federal legislation in terms of broader employment issues like termination and entitlements. Your employment agreements will usually be drafted in a way that references federal legislation. That’s a broader analysis even beyond harassment obligations. If you do fall within that bucket of federally regulated organizations, then by law you have to comply with the Canada Labour Code, and with all of those new harassment investigation and corresponding duties and responsibilities.

If you’re provincially regulated, you can certainly look to the federal legislation and guidance for inspiration, but you ultimately do have to comply with the provincial legislation, so you should make sure that whatever you’re doing, you’re not offside of those. For example, in Ontario, I know that the government has released some pretty great guidance online.

If you search workplace harassment in Ontario, it’s one of the first resources that comes up, and there’s actually a sample policy and program there that you can get some inspiration and make sure that you’re ticking some of the key boxes of what needs to be in your policy and program. I always counsel against a one-size-fits-all approach. Don’t just take the template, plug in your organization name and move on, but you could definitely start with those as templates, tailor them to your organization. Then, if you want to look to the federal legislation, and you like some of the ideas that come out of that investigation process, as long as you’re complying with the mandatory minimums in Ontario, I don’t see why not if it’s workable for your organization.

Elizabeth: There are a couple of questions I’m going to bundle together, and I think you’ve touched on some of it, but it never hurts to sort of get a super clear answer. Are investigations mandatory in every case of harassment being reported, and what constitutes an investigation? When do you go external, or when do you just do it yourself? And I know all of this is going to be depends, but are there good thresholds or best practice around that, and are there timelines for that?

Kristen: I wouldn’t say there’s a clear bright-line test for when you need to investigate. In fact, the legislation casts a pretty broad net, and says it’s not only when a complaint is received, but when the employer becomes aware, or has reason to believe, that there has been an incident of harassment that’s occurred. That prevents you from turning a blind eye and saying, “Well, nobody has actually “brought forward a complaint,” but we can tell “that there’s a relationship that’s eroding.”

As long as the complaint is brought forward in good faith, then there’s no punitive measures generally for an employee who brings forward a complaint that’s established to ultimately not be founded. I would caution against outright refusing to investigate, or determining that no investigation is required, but certainly there’s a spectrum of the type of investigation that may occur.

For example, one tense conversation between two employees that results in a complaint might be something that can be resolved with a lower-level internal investigation, mediation if appropriate, if everybody feels safe and comfortable engaging in that. It doesn’t have to be a protracted, six-month-long investigation.

More systemic issues, issues with multiple complainants or with a number of different witnesses, or more serious allegations, those are the examples where you will have a more full-on, fulsome investigation. As I said, I’d caution against trying to establish a threshold of when you need to investigate. Assume that it’s fairly broad, but it might be the scope of the investigation that shifts.

The question about when to engage an external investigator is a really, really good one. A number of different factors can play into that. In my experience, complaints that involve senior leadership or people in high-profile positions within your organization, or where there’s otherwise a concern or could be a perception that there’s bias or an apprehension of bias, those are circumstances in which you might see an external investigator engaged.

Generally, the internal investigator shouldn’t be reporting to, or even indirectly reporting to either the complainant or the respondent. And obviously if someone’s at a very senior level in your organization, that can be hard to make happen in practice. Another instance in which you might see an external investigator involved is where the situation is complicated, and by that I mean there are many witnesses, there are many different documents, or it’s a very dated complaint. These would include historical allegations that might require going back in time, or where you might need to engage some form of external expert like a forensic or an IT analyst. Those can be examples where an external investigator has the expertise, and has worked with these other types of experts, and may be able to better stickhandle the process.

The last scenario would be when you don’t have the internal resources or the expertise. It’s much easier to defend an investigation that’s done by an experienced external investigator than an internal investigator. Your internal investigator may have the absolute best intentions, and is trying to muddle their way through as best they can, particularly in a small organization, but just doesn’t have the experience or the expertise to sort of conduct a fulsome, impartial investigation.

These things are very resource-heavy, and they can take twists and turns that you don’t expect at the outset as well, and a professional third-party investigator might be better suited to navigating that than somebody who just hasn’t had adequate training because it just might not come up that often in your organization.

Elizabeth: One of the characteristics and also challenges of the not-for-profit sector is that many of the organizations are very small. They’re micro-employers. They might have only five employees, and that, I think, creates special circumstances if there’s harassment or if it’s toxic in any way. Do you have any particular insights on, or tips for, very small organizations?

Kristen: Yes, absolutely. I think that’s a great example of why you might want to turn your mind to assembling your team right now, because the reality is if an investigation hits and you’re that small of a workplace, it’s very likely that everybody in the workplace is going to be a witness. Particularly if it’s a systemic complaint, or it’s an issue of a toxic work environment. There would be a high likelihood that most, if not all, parties in the workplace are going to be involved. If you don’t have an HR department in your small organization that can stickhandle all of this, and everybody needs to be a witness, you’re almost certainly going to need an external investigator in those cases. It can just be a really overwhelming experience to get all those names together. I think being organized and having at least a list of those names that you can rely on is really helpful, and can mitigate damage.

I see a lot of opportunities in small organizations, because many harassment complaints or workplace conflict complaints arise from small issues that snowball, particularly right now during COVID when people have a lot of demands on their time. They’re facing unprecedented levels of anxiety, mental health issues, concerns about their family, and about their economic security. People have a lot going on, and in a small organization, I think you’re uniquely placed to keep the dialogue open and to connect with people, understand what’s happening. If someone’s behaving out of character, there’s probably a good reason for that right now. I think a lot of these problems can be nipped in the bud with early mediation, early intervention to repair a relationship, or addressing a concern with a particular employee before things snowball. I see that as a positive of being a small organization versus a larger one, where some of these issues might fly under the radar, or you simply just don’t have the resources to provide that level of individual attention.

Elizabeth: There are a few questions, and it’s a little bit related to this, but then also there’s a few questions along the same theme of what you just talked about. How do you avoid an adversarial posture from the employer team when a complaint is brought forward, and I think that’s a little bit what you’re saying about good management, right? Sort of deescalate as soon as possible, and keep the channels of communication open, productive, and constructive as much as possible.

Kristen: Yes, absolutely, an external investigator can often help you position that too, because at the outset of an investigation, there are certain things that have to be said. For example, you have to address the issue of confidentiality, and experienced investigators are really good at saying that in a way that empowers everybody, or at least is intended to empower everybody involved in the investigation, versus someone who might not have the same training. It can come across really harshly and shut down the lines of communication if you say, “You can’t talk about this to anybody. This is secret. If you talk about it with somebody, there’s going to be really serious repercussions.”

That’s an example, I think, where an investigator who’s experienced can really help you keep that investigation process less adversarial. There’s a certain amount of rebuild that has to happen, particularly in a small organization, after any investigation, but I think an investigator can help you smooth that over a little bit, or at least make employees’ perception of the investigation a little bit more positive than an inexperienced investigator may be able to manage.

Elizabeth: I think a lot of what you’ve been saying, or the assumption often is that the harassment is in a downward direction in terms of power. What happens when the employee harasses management? Is that different in any way? Do all the same things apply? Can you comment on that?

Kristen: Yes, absolutely. Each case would have to be treated individually, but I don’t see any reason why an employee harassing somebody in an upward-reporting relationship, or in a lateral-reporting relationship would be any different. In fact, we often see a phenomenon in sexual harassment complaints of men or male-identifying employees feeling ashamed, or a certain level of stigma, around bringing forward a complaint of sexual harassment in the workplace. They feel there’s a stigma, or it reflects on them, or that this is sort of a women’s or a cis women’s issue. That’s come up for me a number of times in my career.

I think there could even possibly be a phenomenon amongst management where you’re supposed to maintain a stiff upper lip and weather a certain amount of this, but really you have the same statutory entitlement to be free from harassment in the workplace as any other employee. Although that could be an interesting investigation, and again, maybe an instance in which you do need to bring in a third party to maintain no bias, that might not be something you want to stick your HR person with. I don’t see why there would be any difference in that employee’s entitlement to be free to come to work free from harassment.

Elizabeth: This is an interesting question. What does the OHSA say about refusing unsafe work when you’re asked to keep working with an alleged harasser after the investigation is done?

Kristen: Super fact-specific. Yes, there is a right to refuse unsafe work when you think that the workplace is unsafe or the type of work that you’re being asked to do is unsafe. There’s a procedure that’s set out under the Occupational Health and Safety Act that requires the employer to investigate with the involvement of either your health and safety representative or your joint occupational health and safety committee. There’s a whole procedure that is set out under the legislation about what has to happen if the employer doesn’t think that it’s unsafe work, and what happens next. The employer should always follow that process, but in terms of following the conclusion of an investigation, that’d be really fact-specific, and we’d have to assess that on a case-by-case basis. There’s definitely nothing particular set out in the legislation that would address that issue. It would be about interpreting the parties’ obligations in that situation.

Elizabeth: This is an interesting question. I suspect it’s coming from a very particular experience, but I think it pushes out an interesting issue. If an employee goes to a manager with a complaint of harassment, but then says they don’t want to make a formal complaint, can the employer still proceed?

Kristen: Yes. And in fact-

Elizabeth: And should they?

Kristen: Yes, I mean, can they, and should they? That’s a really tough situation, and it does happen. It’s not only should they, it’s really under the legislation that you have to. Under the legislation, which is fairly broadly worded, is something to the effect of – “when the employer becomes aware.” Now, we know in practice that that doesn’t always happen, and that sometimes the employee’s looking for initial support or advice, and they’re really saying, “I’m just looking for a way to maybe mediate this conversation, or some strategies to help lessen what I think is inappropriate behavior, and I’m really not needing the full complaint.” There is a level of judgment that has to be exercised there.

What I will say is that, if for any reason you are not proceeding with an investigation after receiving a complaint, you should really be documenting, and you should probably be seeking legal advice before you make that decision. You should also really be documenting why it is that you’re not proceeding, the nature of the conversation that you had with the employee, and the supports that you did provide. You should definitely be circling back to that employee to make sure that the concerns have been addressed, and if they haven’t, that’d be a situation where I think you’d be proceeding with an investigation. It’s all very case-by-case, but you definitely don’t want to take the employee at their word, forget the problem, and check it off the list. That is something that would require follow-up if you weren’t going to proceed with the investigation immediately.

Elizabeth: I don’t know if you’ll have any thoughts on this, but there’s a question if you do have thoughts on why many complaints end with settlements before findings are clearly highlighted or shared. Has that been your experience?

Kristen: That has not been my experience. Like I said, usually under the health and safety legislation, at least in my experience, the investigation does come to some form of findings. The investigator finds that either the complaint was substantiated, that it was not substantiated, that there wasn’t enough evidence, or they weren’t able to reach a determination, which does happen sometimes.

Certainly, there can be settlement discussions that happen after that, and if one or more parties in particular are looking to exit the workplace, or exited from the workplace after an investigation, there undoubtedly can be settlement discussions that happen then. In my experience, I haven’t, that I remember, had that happen mid-investigation, so there are probably some facts or unique circumstances that contributed to that.

Elizabeth: If an investigation is completed by a supervisor, so I guess internal, and staff involved are unhappy with the result, is it sufficient or reasonable to have HR step in and conduct another investigation using the investigation notes from the first, or should they start from zero? I guess in a broader sense, if the first go at this doesn’t produce the desired results, do you build on what was already done or do you just scratch it and start fresh? What’s the best approach in your experience?

Kristen: I think it depends on what the gripe is with the initial investigation. If it’s that everybody agrees that the process was fair, but it’s the conclusion that somebody takes issue with, then you might not have to start from scratch. I think it depends really on the issue that everyone’s taking with the investigation, or that somebody is taking with the investigation or its outcome, and that would probably guide your next steps in terms of figuring out how to respond to those concerns.

Elizabeth: So going back to lots of questions about investigations. I think that’s where people have their greatest –

Kristen: They’re tough.

Elizabeth: Well, they’re tough, and they’re challenging, and they are really at the heart of the matter. The preventative stuff is in the policy and the program that you put in place, and I just want to touch on a question or two that look at that. One of them, one of the questions is, who is best to include in that process? Is it an inclusive process across the staff, and what are the most common mistakes in drafting these kinds of programs?

Kristen: Definitely, so the most common issue with drafting policies and procedures about harassment is either the set-it-and-forget-it attitude that I mentioned earlier, or taking a template either that you find online, or that you might get from another organization, and just putting it in place without engaging in critical analysis of how it applies to your workplace.

It’s a mistake to do this without undertaking a meaningful analysis of why harassment might occur. When we’re talking about harassment, we’re not just talking about employee to employee. That’s the most common mistake, but there are also members of the public versus some of your employees. Some of your employees might be in a position in your organization where they are external-facing, they’re dealing with members of the public, and they may be at a higher risk, depending on the nature of your organization, of being subject to harassment or mistreatment in the course of their job.

For example, a harassment policy that applies to people who work in an office and don’t interact with the public at all, only addresses employee-to-employee harassment, and isn’t going to cut it for an employer with employees who are public-facing and have a whole host of other risks.

Templating your policy and program, as tempting as it may be, you still have to engage in critical analysis and make sure that it’s tailored to your organization. In terms of who to involve, in Ontario, there’s actually an obligation to involve either the joint occupational health and safety committee or the health and safety representative, depending on the size of your organization, in drafting the workplace harassment program, and you should also involve them in any updates to that program.

If you are unionized, you may also have an obligation under the collective agreement to involve your union in those types of discussions and any updates to those policies. In terms of involving other employees, I personally think that it’s good to have at least feedback. You might not be circulating a draft to everybody to mark up, but lunch-and-learn sessions and even debriefs with people who have been involved in investigations to say, “Is there anything that we could have done differently to make that better for you, or did you have any concerns about how that investigation went down?” You can learn a lot from employees who are overall okay with the process, but say, “Yeah, this happened,” or, “This was said to me early on and I didn’t know what it meant,” or, “I read this policy before bringing forward a complaint and I didn’t know what this meant,” and they can really help. That feedback can really help.

I say definitely involve the workforce, at least in the updates, and at least in soliciting some feedback about your process, because you can learn a lot from employees that way. You can really make sure that you have a policy and program that are tailored to your workplace.

Elizabeth: In many respects, in the last five to ten years, the concept of bullying has become much more understood, much more talked about. The “Me Too” movement has had tremendous impact on how we think about this. What are some of those effects, have you found, on how this is playing out in workplace harassment policy, investigation, work, all of it?

Kristen: Absolutely. I think that what we’ve really seen is an acceptance, or at least employers grappling with the fact that sitting, crossing your fingers, and hoping that harassment never happens in your workplace isn’t enough. Unfortunately, there’s a recognition that harassment happens across a variety of workplaces, across a variety of industries, and that an employer really has to be proactive in creating a workplace culture that says that’s not acceptable. When it happens, it’s going to be dealt with really seriously.

I think we’re seeing a much more proactive approach from employers regarding harassment, and much more of an interest in prevention versus responding, and investigations. I think there’s also been a recognition that harassment, and that’s where we see this term of bullying, which isn’t really a legal term, right? It’s sort of a colloquial term for workplace harassment, but I think what it gets at is the idea that a lot of workplace harassment is now happening in more sort of insidious, and I want to say, subtler ways.

I mean subtler in terms of how it actually happens, not the effect that it has. I think there’s also been a recognition that subtle micro-aggressions, small instances of feeling isolated or discriminated against, over time can build to have very serious impacts on employees, on their mental health, on the productivity of your workforce.

I think we’re starting to look at harassment in a much more nuanced way, and we’re understanding that it’s not just about big outbursts. I mean, those incidents still happen, outward name-calling, or some of the more obvious instances of workplace harassment. But we’re starting to appreciate that there’s a more systemic level to this that has to be involved both in our prevention and our response.

I think it’s really interesting that we’re getting a lot of questions about workplace investigations, because I think that has been another consequence of the “Me Too” movement, and this broader understanding of workplace harassment, because these forms of harassment are more insidious, and they are harder to investigate, right? One instance where somebody stands in the middle of the lunch room and calls somebody else an inappropriate name is a heck of a lot easier to investigate than a course of these small microaggressions over time, trying to figure out what was meant by, and who witnessed, all of those comments. The scope of investigations, I think, is becoming a lot more complicated, and it makes sense to me that employers have a lot of questions about them because they’re really tricky to manage.

Elizabeth: So I’m going to bundle two questions, and it’s the last one, because I have to let you go. “How and where would you start an investigation for a non-profit that hires a senior leader who harasses people of colour, and then fires them with no reason, and replaces them with their own cronies or people who are not diverse? How and where do you begin to tackle that?” The second question is – “Who do you turn to when an employer concludes an investigation, but doesn’t provide a summary and you see no change?” So those are both kind of, hands up in the air, what do you do?

Kristen: The first one is really, really fact-specific. So that sounds, to me, like a good case for an external investigator to be involved, because it hits a few of those boxes. It involves really serious misconduct if true. It also involves senior leadership, which, again, is another indication that leans towards an external investigator.

I think the spirit of what the questions are getting at is, what if an employee doesn’t see any change, do employees have different recourse? There’s the ability to refuse unsafe work, which we discussed earlier, that’s available to employees in some circumstances. There’s approaching the joint occupational health and safety committee or health and safety representative. There’s approaching your union if you do have a union, and then there’s external supports, right?

There’s the ability to bring a claim or complaint either through the Human Rights Tribunal, and, in Ontario, they have, the name escapes me right now, but a really wonderful organization that will give assistance and information to individuals who are experiencing discrimination in the workplace or other human rights concerns, and they’ll sort of provide you with information and get an employee set on the right path.

There are other legal options from there, and then, of course, sometimes what happens is employees escalate these things internally. I’ve seen cases where employees have approached a board of directors with concerns that they feel haven’t been addressed, and that’s another option that some employees will avail themselves to.

It depends, again, on the nature of the concerns and what outcome the employee is looking for, but I think all of those speak to the idea that the earlier you can catch, resolve, and remediate these concerns, the less likely you are to have this sort of general escalation. Employees generally just want the behaviour to stop. We lose sight that that’s often just all that the employee wants, to come to work and not have this behaviour continue. Sometimes we over-complicate it, when really we could catch these things early on and not end up in these really complicated, contentious investigations. I think it speaks all the more to the importance of prevention, and knowing and having an eye on your workforce, and trying to catch these issues early before they escalate.

Kristen Pennington

Partner, Employment and Privacy Law, McMillan LLP

Kristen Pennington is a Partner at McMillan LLP, a full-service law firm with offices nationwide, where she practices both employment and privacy law.

Experienced in all areas of employment law, Kristen advises employers on hiring and dismissals, employment contracts, performance management and discipline, employment policies, and human rights laws. With an active litigation practice, Kristen has appeared before courts and tribunals at all levels in Ontario, as well as at various arbitrations and mediations.

An area of particular expertise for Kristen is assisting employers in developing and implementing effective workplace discrimination, violence, and harassment policies and programs, and managing workplace complaints. She also provides training on workplace investigations, employee accommodation, management of conflict in the workplace, and the handling of employees’ personal information.