Harassment

You Must Investigate

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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?

Coffee With A Side of Bullying

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In Ontario, the Occupational Health and Safety Act includes recent amendments to address incidents of harassment, sexual harassment, and violence in the workplace. The importance of these amendments lies in the presumption that workplaces need to be safe, physically, and that employees can feel safe, psychologically.

Under the Occupational Health and Safety Act – Section 1, we know that the definition of workplace harassment means a person or persons “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.” The same section of the act also identifies that “reasonable managerial actions” taken to direct workers is not or does not constitute workplace harassment.

When there is an allegation of harassment, under the Occupational Health and Safety Act, the employer must investigate and report on the results of that investigation. Further, an employee has the right to bring a complaint forward for investigation, based on their personal belief that they are being harassed.

These legislative parameters form an interesting backdrop when looking at the recent and on-going allegations of bullying by Tim Horton’s franchise owners. These are owner-employers who appear to have taken punitive measures against employees resulting from the implementation of amendments to the provincial Employment Standards Act.

Specifically, there has been much media focus on certain franchise owners, who have implemented cuts to benefits and working conditions for employees in a manner that has been reported as bullying. Bullying, while not defined specifically in legislation, falls into the category of workplace harassment.

Click here to read an article about the allegations of bullying Tim Horton’s employees.

In response to these allegations, the Ottawa District Labour Council set up a bullying hotline for individuals to report those employers who are engaged in these bullying practices. In turn, the labour council will publish the names of these bullying employers in order to provide a forum for public shaming of their actions.

Click here to read about the bullying hotline.

From the employer side, in this case, the justification for these actions comes from a need to balance the financial books. In order to provide the increases in wages, the employer appears to be implementing cuts in other areas of compensation so as not to suffer any additional losses in profits. Is it possible that these actions are reasonable and not, in fact, harassing or bullying?

Unfortunately, what seems to be missing is the ability of franchise employees to take reasonable and legitimate steps to report the perceived bullying behaviour on the part of their employer. In the absence of an HR department, reporting structures that include legislative requirements, or clear policies and procedures, it seems that small business and franchise employees continue to have limited options for potential support or resolution.

In these cases, employees often have one of two choices – either they comply with the employer’s demands or they quit. Neither option appears to support the reasonable and legitimate right to feel safe.

Discussion Questions:

  1. As a Human Resources consultant for a small business or a franchise, what types of procedures would you put into place that allow employees to report incidents of bullying or harassment? Be specific.
  2. If you were an employee in a Tim Horton’s franchise, how would you respond to the cuts to your work-related benefits? What actions would you take?
  3. Do you agree that the cuts to employee benefits implemented by some Tim Horton’s franchises are a form of harassment, as identified in Ontario’s Occupational Health and Safety Act? Explain your rationale.

Safety Costs

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There are three key principles in the management of Human Resources. These are, in no particular order, the management of risk, the management of costs and the management of investments. When we apply these three principles to the management of people they help guide our Human Resources practices in a language that non-Human-Resources business leaders can understand.

These same principles apply to the management of Occupational Health and Safety. Risks, costs, and investments are concepts that make sense to business leaders whose main concern is the bottom line. It is our job as Human Resources practitioners to make the connection for business leaders between the bottom line and safe workplace practices. We are responsible for the people who are the resources impacting the fiscal health of every organization.

Nowhere is the need for the diligent Human Resources management of risks, costs, and investments clearer than in the emerging precedent-setting cases linked to workplace harassment. The financial penalties imposed on the employer for failing to providing a safe workplace are significant.

Click here to read about a recent case where an employer was ordered to pay damages as a result of workplace harassment.

If business leaders to do not understand the language used by Human Resources practitioners when we speak to the social need for safe workplaces, free from harassment of any kind, then we need to re-shape the language to get our points across. We need to use the language that makes sense and has an impact on business leaders in order for them to implement what is required by law.

Workplace harassment in Ontario falls under the scope of the Occupational Health and Safety Act in two distinct pieces of legislation. Bill 168 and Bill 132 both impose the legislative requirements for employers to ensure that workplaces are free from harassment of any kind. When the employer fails in these responsibilities, it is a failure of risk and investment management, resulting in significant costs.

Money talks. It is the job of Human Resources to make sure that people are listening.

Discussion Questions:

  1. How does risk management, cost management, and investment management apply to people management?
  2. How could you use these three principles to convince the leader of an organization to implement a harassment free workplace?
  3. What are ‘Wallace damages’? Why would these be a consideration when dealing with the employer’s responsibilities in an allegation of workplace harassment?