You Must Investigate


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.

Click here to read the requirements of the employer to investigate.

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.

Click here to read the article.

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.

Discussion Questions:

  1. What steps can the HR professional put into place to ensure that an objective investigation into a workplace harassment complaint is implemented?
  2. 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?
  3. 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?

Dangerous Work

A bag of money and gavel represent many legal expenses.
Matt Benoit/Shutterstock

Some workplaces are inherently dangerous. Often we think of these dangers arising from physical or environmental agents that could cause harm to the worker on a day-to-day basis. The human element is also a very real source for contributing to a dangerous workplace, especially in organizations that serve vulnerable and disenfranchised members of our society.

Ontario’s Waypoint Centre for Mental Health Care is a facility that treats patients with severe and complex mental health issues and disorders. In the spring of 2016, a patient at the center was able to access two screwdrivers and stabbed several workers, causing them serious injury.

Almost a year later, the Ministry of Labour has laid three charges against the Centre under the Occupational Health and Safety Act. These charges include the employer’s failure to take every reasonable precaution to protect workers; failure to ensure that measures and protections were established for workers; and failure to have health and safety procedures in writing.

Click here to read an article about this case.

As noted in the article, if the employer is found guilty of, or pleads guilty to, these charges they may be faced with a fine of up to $500,000 and other potential penalties.

The Waypoint Centre has responded, as noted in the article and as posted on their website.

This case shows us that policies and procedures on their own do not make workplaces safe. It is clear that the employer must engage risks proactively, especially in a high-risk workplace where danger lies in human behaviour that may be volatile and unpredictable. The employer must act in order to ensure that all persons, both employees and patients alike, are able to have some assurance of living and working in a safe environment.

Discussion Questions:

  1. As the Health and Safety Manager in this situation, what steps would you take to ensure that workers feel safe?
  2. How could you promote a safe workplace in an inherently dangerous work environment?
  3. If you were the employer in this case, how would you plead and what would be the result?