the attention of the individual who is acting inappropriately to
stop their conduct, or if that is unsuccessful, report the conduct
to the company; usually through human resources. The intent of
this requirement is to ensure that employment disagreements over
conduct don’t escalate automatically to a complaint if the parties
can address it themselves. However, serious conduct is expected
to be reported; not doing so ties the hands of the employer who is
trying to ensure a harassment-free workplace.
When allegations of harassment arise, an employer is under an
obligation to investigate these allegations to determine if they are
founded. A failure to do so could lead to liability or possibly (par-ticularly
in Ontario) a Ministry of Labour investigator conducting
an independent investigation.
THE “HARASSMENT-FREE” WORKPLACE
Claims of harassment, if proven, can be damaging to an orga-nization.
Not only financially, but from a morale, productivity
and workplace culture perspective. To promote the concept of
a workplace being harassment free, employers should consider
1. Policy Review. Review and update policies on workplace
violence and harassment. Make sure that the definition of
workplace sexual harassment is specifically addressed.
2. Workplace Diversity Policy. Consider creating a diversity and
inclusion policy which recognizes the necessary and growing
legal requirements related to accommodation, harassment
and sexual harassment, but also meets the growing social
expectation among employees (and particularly Millennials)
that employers eliminate barriers that impede full inclusivity
in the workplace.
3. Complaint Procedure. The workplace harassment policy
should set out a clear and defined process for making a
complaint. Employees must have the ability to report an
allegation of workplace harassment to someone other than
their supervisor or manager in the event the supervisor/
manager might be involved in the complaint.
4. Be Ready. Employers should have appointed members of
HR/legal counsel (or if there is no in-house legal counsel,
external counsel) who are at the ready to deal with complaints
of harassment. This should include identified contact names
and a protocol concerning internal communications, including
what might be treated as privileged. Being organized removes
delays in starting the process, which is critical where there are
issues of harassment.
5. Assessment. Prior to the investigation, conduct a contextual
review of the workplace and the individuals involved. Are
there any specific factors about the respondent (alleged
harasser) or complainant that need to be taken into
consideration before decisions are made as to what will
happen during the course of an investigation? What interim
steps will be taken to deal with the complaint, particularly
where the alleged harasser and the complainant remain at
work in the same environment? Simply sending the alleged
harasser home without assessing the necessity of that step
or the potential impact on reputation, may end up in future
liability if no harassment is found to exist.
6. Investigation. Set out a process and procedure for the
investigation of complaints. The legal requirement is that
the investigation be done in a manner “appropriate in the
circumstances.” Whether or not that involves an internal
investigation or an independent third party depends on
the circumstances and should be discussed with HR or
legal counsel. However, the following guidelines should be
considered with respect to the investigation:
a. Take all complaints seriously. Don’t judge (either with
respect to the complaint itself or the alleged harasser).
Be sensitive and, where necessary, consider whether or
not there needs to be a separation from the workplace of
the alleged harasser for the period of the investigation.
olivier26 / 123RF
To the extent that it is possible,
organizations need to ensure that
confidentiality is maintained
22 ❚ CONFERENCE ISSUE 2019 ❚ HR PROFESSIONAL