We see almost daily news items about workplace harassment, and employers can expect an uptick in worker awareness and complaints of workplace harassment. Whether or not an employer has received a complaint, they should be aware of their obligations when it comes to workplace violence and harassment.
Violence and Harassment Under the Occupational Health and Safety Act
The Ontario Occupational Health and Safety Act (OHSA) sets out requirements and duties for employers regarding the prevention and management of violence and harassment, as well as the risk of violence and harassment in the workplace. Workplaces must have policies and programs in place to educate their workforce, prevent and address workplace violence and harassment.
Programs must include policies and training that address the following:
- What constitutes harassment and violence
- What are possible sources of harassment and violence in the workplace, including from customers, workers, domestic partners of workers etc.
- Roles and responsibilities of the workplace parties
- How to report incidents of workplace violence or harassment
- How incidents will be investigated and dealt with
- How information about the complaint and the individuals involved will not be disclosed unless necessary
- How the worker who has made the complaint will be informed of the results of the investigation
The OHSA dictates that complaints of workplace violence or harassment, whether formal or informal, must be investigated. In Ontario, the employer has a legal duty to make the workplace safe, so if there is any indication of behaviour that would make the workplace unsafe, the employer must address it. This may be the case even if the alleged harasser no longer works for the company or if they were a one time customer.
Investigations into workplace violence and harassment should be conducted promptly, within 90 days, and by someone who is not directly involved. This means that if the complaint is about the head of HR, the head of HR should not investigate the complaint, even if investigating harassment complaints falls within their job description. In some workplaces it will be necessary to bring in a third party investigator to ensure that the investigation is conducted without bias.
An investigation must also be thorough. This means that the involved parties and any witnesses should be separately interviewed, and that all relevant documents should be gathered and reviewed. The investigation should result in a report, outlining whether or not a violation of the workplace harassment and violence prevention policy was found and remedial steps to be taken.
Above all, be sure to hear both sides of the story! The accused/respondent is innocent until proven guilty and her/his version of the dispute must be heard. Every workplace is full of different opinions, and it’s very easy for two people to see the same set of facts from very different perspectives. Not every complaint amounts to “harassment” under OSHA, but you will never know until you sit and hear both sides out. Getting the process right is just as important as getting the substantive outcome right.
If a violation of the policy is found, the employer will need to address the situation with remedial measures. These could include:
- Employee training
- A transfer of the violating employee
- Termination of the violating employee
- An apology
- Instituting measures to protect workers from the risk of harassment by customers
Learn More If you need help managing a harassment complaint in your workplace, or to ensure that you have a compliant prevention program in place, get in touch. For more about employer duties specific to sexual harassment, as well employer duties under the Ontario Human Rights Code, see our previous post.