March 21, 2021
Failure to conduct a proper workplace investigation in response to a harassment complaint may be expensive.
Ontario employers have an obligation to maintain a safe workplace under the Occupational Health and Safety Act. Harassment explicitly makes for an unsafe workplace. There is a similar obligation under the Human Rights Code to protect workers from harassment. Under the Code, there is a duty to investigate in response to a complaint, and also a requirement to prevent a “poisoned work environment”.
These obligations apply to all employers, even small employers which might not have professional human resource staff. They may not realize that failure to properly investigate may be a violation of the Code subject to penalties even if the harassment complaint is not proven.
A 2005 decision established criteria to determine whether an employer adequately addressed a complaint:
- awareness of the complaint
- treating the complaint seriously and sensitively
- resolution of the complaint – providing a healthy discrimination free workplace & communicating this to the complainant
in a 2020 decision, AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai, the Human Rights Tribunal awarded $55,000.00 to a worker over and above lost wages. The complaint involved a sexual assault. In response to the complaint, the employer (which did have a human resource manager involved) did conduct a form of investigation, but never took steps to communicate the results to the worker, or to take proper action to correct the poisoned work environment.
There were conflicting stories about the event. Instead of making a hard decision about which story to believe, they responded by transferring the complainant to a new role away from the aggressor. This came across as a slap in the face.
The employer suggested that the worker seek assistance through the Employee Assistance Plan. That, not surprisingly, was viewed as insensitive.
The alleged harasser eventually pled guilty to assault in criminal court.
Among the factors in giving that award was the failure to properly investigate.
The lost wages were about $4000.00, so the award for loss of dignity, feelings and self-respect was much more costly.
This is not an isolated “one off” award. Just a few days later, a different adjudicator, in another case, Kaur v. 1865898 Ontario Inc, pointed out that the word “harassment” may not need to be used if the complaint otherwise makes the employer aware of the nature of the problem. There was no written policy on sexual harassment, so no requirement of a formal complaint.
In that case, the employer took no steps to investigate. Once they lost the argument as to whether they were aware of the complaint, they had no chance on the other steps.
They lacked the evidence to rebut the complainant’s testimony, and the claim was established. A poisoned work environment was also found to exist.
The complainant was fired after she complained, so a finding of reprisal, yet another breach of the Code, was also made.
Because the worker found new employment quickly, she did not recover for lost wages, but she also sought money for injury to dignity, feelings and loss of self-respect.
The Tribunal considered the range of awards in similar cases. It expressed concern that a low award might form a “license to discriminate”. In addition, the reprisal formed a separate violation, so though only one amount could be ordered, it should be increased.
The Tribunal also increased the award to reflect the fact that the employer failed to properly investigate. What little they tried to do just made it worse.
After determining that the high end of awards in similar cases was $50,000.00, this worker was awarded $40,000.00. Although some part of that was for her emotional distress, it was largely intended to send a message to employers to take complaints seriously.
If you are an employer in Ontario, you need to take workplace harassment seriously. It is not only the correct thing to do, but failure to do so may be expensive. Whether you have one employee or thousands, you need to:
- educate yourself about your obligations
- educate supervisors about their responsibilities
- educate workers about rights and responsibilities
- establish proper workplace policies
But what these cases tell us is that you must do more. You must:
- conduct an investigation (but it needs to be a proper investigation); as the Cooksville Hyundai case shows, even if you have human resources staff, you may want to bring in an expert investigator, so that the investigation is done right
- reach a fair resolution
- provide a healthy discrimination free wok environment
- communicate that to the complainant
- at all times be respectful to the complainant
The Tribunal has sent a strong message that if the award for lost wages and the loss of morale is not enough reason to comply, perhaps the increased penalties will be.