There is a reason workplaces are governed by legislation including Health and Safety laws. Most of us want to believe that people in the workplace will do the right thing in the absence of the law. The reality is, however, that laws exist because people do not do the right thing or, even worse, they do not do anything at all unless they are forced to comply with prescribed statutes and regulations.
A prime example of this comes from the amendments to the Occupational Health and Safety Act (OHSA) of Ontario dealing with workplace harassment complaints. In 2010, the OHSA was amended to include employer obligations with regard to workplace harassment under Bill 168. These amendments included psychological harassment and bullying for any reason and expanded the scope of what harassment looks like beyond the previous limitations which were based on prohibited grounds as defined by the Ontario Human Rights Code. While these changes were significant, they did not go far enough until the implementation of Bill 132 in 2016 . This bill legislated the obligations of the employer to investigate any harassment complaints linked to the workplace. The OHSA in Ontario now prescribes what, how, and who must conduct a harassment investigation on the part of the employer.
It should be no surprise that these increasing investigative obligations have lead to increases in the number of complaints. On the one hand, the fact that employers must ensure that they have met their due diligence obligations is a good thing. On the other hand, it also means that every complaint must be investigated no matter what the perceptions of that complaint may be.
This dichotomy is explored and explained in a recent article written by employment lawyer, Ed Canning.
As uncomfortable as it may be to read the case outlined by Mr. Canning, it does reiterate the fact that just because someone says they are being harassed, does not mean that harassment, as defined by the law, has actually taken place.
How do we know? By ensuring that an effective and thorough harassment investigation has been completed. Not just because the law requires it to be done, but because it is, indeed, the right thing to do.
- What steps can the HR professional put into place to ensure that an objective investigation into a workplace harassment complaint is implemented?
- How will you deal with a disgruntled employee who, from your perspective, has a legitimate workplace concern that does not fall into the realm of harassment?
- What penalties are in place if the employer is found not to have followed their legal obligations under the Occupational Health and Safety Act with regard to harassment investigations?