By guest blogger Amanda Driscoll
In Ontario, the Occupational Health and Safety Act, (OSHA) requires employers to provide a safe and healthy work environment, which includes preventing and addressing workplace sexual harassment. This means your employer should have a harassment policy that sets out how complaints about sexual harassment will be addressed.
When an employer receives a complaint about sexual harassment, they have an obligation to investigate the complaint. The investigative process is usually the same each time, but as no two complaints are the same, processes and timelines can change depending on the circumstances of the complaint.
The purpose of a workplace investigation is to determine whether the incidents alleged by the complainant happened. Unlike in criminal court, a workplace investigation will be determined on a balance of probabilities. This means the investigator will determine whether it is more likely than not that the incidents occurred. An investigator may also determine if the alleged conduct violates any internal policies, procedures, or legislation (OHSA, Ontario Human Rights Code, etc.).
If you have never been through a workplace investigation, it can be a scary and intimidating process, but it does not have to be. Understanding the investigative process can help you in case you are involved in a workplace investigation.
After reviewing the complaint, the investigator will arrange an interview with the complainant. The purpose of the interview is to obtain detailed evidence and information from the complainant. The interview can be long or short and is generally conducted in person.
It is common for interviews to be audio recorded, and for the investigator to take written/typed notes. Parties may be entitled to review the notes at the end of the interview, but it is unlikely that a copy will be provided for the parties to take home. Only the investigator should have an audio recording of the interview, this ensures the integrity and confidentiality of the investigation. Parties may also be entitled to have a support person attend their interview. The support person cannot speak on behalf of the complainant or respondent and should not be a potential witness in the investigation. Your employer’s policy should set out all of these procedural requirements, if not, you can ask the investigator for more information on their investigative process.
After meeting with the complainant, the investigator will prepare a summary of the allegations. The allegations should include dates, times, locations, and the conduct alleged to have occurred. The summary is then provided to the respondent in advance of their interview with the investigator. A good investigation provides adequate notice to the respondent.
The complainant and respondent should provide any documentary evidence that they want the investigator to review. This can include text messages, photos, Facebook messages, videos, phone call records, or any document relevant to the allegations. The parties should also provide a witness list. Witnesses should have direct knowledge or have witnessed the incidents and are typical not character references.
Once witness interviews have concluded, the investigator may conduct follow-up interviews with the complainant and respondent. If contradictory evidence has come forward during the investigation, parties should have the opportunity to respond to the evidence before any factual findings are made.
After the investigator has reviewed all the relevant evidence, they will prepare a report. The report is provided to the employer and the employer is obligated to let the complainant and respondent know the outcome of the investigation and what if any steps the employer intends to take to resolve the complaint. Witnesses are usually not notified of the outcome of the investigation.
If an employer fails to investigate, they can be subject to hefty fines from the Ministry of Labour.
Our guest blogger, Amanda Driscoll, is a Workplace Investigator, and the Project Manager/Lawyer of Peterborough Community Legal Centre's Sexual Harassment in the Workplace Project (SHIW). Amanda has over five years of investigative experience, in both workplaces and governmental oversight. Amanda was previously a Staff Lawyer with Aboriginal Legal Services in Toronto.
If you would like more information on workplace investigations, preparing workplace harassment policies, or training on workplace sexual harassment please feel free to contact Amanda at driscoa@lao.on.ca and 905-749-9355.
The Legal Clinic is offering free virtual and in-person workshops for employees and employers on a variety of topics related to sexual harassment in the workplace. We are also offering free legal assistance for victims of sexual harassment. To find out more about the services and workshops we offer visit our website at www.tlcshiwproject.com or contact Anne-Marie Langan at langana@lao.on.ca or 613-264-7154.