Workplace Harassment: What Employers Should Know About the Duty to Investigate

Authors: Calen Nixon, Jana Linner

Each year MLT Aikins provides a Labour Update on key decisions from Courts, the Labour Relations Board and arbitrators. This year, the Saskatchewan Labour Update is being held as a series of six separate webinars. This blog previews one of the many cases we will discuss during the Accommodation and Human Rights Update webinar series.

Saskatchewan employers have obligations to provide a safe and respectful workplace free from discrimination and harassment within the meaning of The Saskatchewan Human Rights Code, 2018 and The Saskatchewan Employment Act.

One of these obligations is that employers must take reasonable steps to effectively respond to allegations of harassment, including sexual harassment. Given the limited number of decisions locally, decisions involving employers outside of Saskatchewan who allegedly failed in such obligations are particularly important for understanding the standards that tribunals and courts expect of employers, and for determining best practices.

One such recent decision, TM v Manitoba (Justice), 2019 MBHR 13, outlines important considerations for an employer to guide their response to allegations of harassment, even when the person alleging the harassment does not initially report the names of the alleged harassers.

The issue in that case was whether or not the employer conducted an adequate workplace investigation in response to allegations of sexual harassment. The focus of the case was the employer’s obligation to provide a safe and respectful workplace free from harassment and discrimination pursuant to The Human Rights Code of Manitoba.

The pertinent background facts were that over the course of many years, an employee experienced persistent bullying and harassment from coworkers regarding his sexual orientation. Numerous coworkers and senior employees engaged in egregious conduct towards the employee.

Throughout this period the employee reported incidents to superiors through various avenues. The employee ultimately wrote a formal letter to the employer following an instance of sexual assault detailing some of the incidents that occurred. The employer told the employee that it could not proceed with an investigation unless he named the people involved in the incidents, given the nature of the workplace. The employee was reluctant but he eventually provided the names.

The employer took some steps short of an investigation, which included providing remedial workplace training sessions, but did not maintain records of the substance of these sessions or of which employees attended the sessions. The employee filed a human rights complaint against the employer.

The Adjudicator considered the following factors in deciding whether or not the employer had taken reasonable steps to respond to the complaints of harassment, as initially set out in Jones v Amway, 39 CHRR 480 (ONHRT), appeal dismissed, [2002] OJ No 1504 (ONSC):

  1. is the respondent aware that sexual harassment is prohibited conduct?
  2. is there a complainant mechanism in place?
  3. did the respondent act with alacrity in handling the complaint?
  4. did it deal with the matter seriously?
  5. has it met its obligations to provide a healthy work environment?
  6. has it met its obligation to inform the complainant of its response?

The Adjudicator found that the employer failed to meet many of these factors as applied in the circumstances. The employer did not have a clear understanding of what constitutes harassment on the basis of sexual orientation, had no mechanism in place to handle workplace harassment complaints and had generally failed to take the matter seriously. The employer also failed to adequately document the positive remedial steps that it had taken to provide workplace training to employees.

The Adjudicator held that the employer failed to satisfy its obligations pursuant to the Manitoba legislation because it did not take reasonable steps to address the complaints.. The Adjudicator found that the employer’s response to the sexual harassment was inadequate and the employer was ordered to pay the employee significant damages to compensate him for injury to his dignity, feelings and self-respect, and to send a message to employers. The Adjudicator also ordered that the employer undertake a number of remedial human resources steps including training for its staff.

Regarding the employee’s reluctance to name the alleged harassers, the Adjudicator found that the employer’s response “to simply close the file was not reasonable” and that, in the circumstances, there was sufficient information given by the Complainant to conduct an investigation. The Adjudicator explained that, “[w]here allegations are specific, detailed and amount as they did in this case to alleging a culture of a toxic work environment, what amounts to ‘reasonable steps’ will likely be different than where the allegations point to the actions of one or two individuals.”

Employers should have a complaint mechanism in place for reporting harassment in the workplace and they should generally take the matter seriously. Employers should also ensure that management, supervisors and other employees have an understanding of what constitutes harassment and sexual harassment.

If an employer becomes aware of harassment or sexual harassment in the workplace, its duties include acting proactively rather than waiting until a formal complaint is brought by an employee to respond to the misconduct. Further, the fact that a complainant does not name the alleged perpetrator does not release an employer from their duty to investigate complaints.

Join us at the 2020 Saskatchewan Labour Update Webinar Series for a more in-depth analysis of this case and other notable decisions regarding an employer’s duty to accommodate and human rights obligations.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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