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How the Employer Met its Legal Obligations	How the Employer Could Have Exposed Itself to Liability
Had a current workplace harassment policy HR acted in accordance with the policy Promptly commenced an investigation into the allegations	Not ensuring that incidents and complaints of harassment were investigated Not providing training sufficient training to supervisors (managers) regarding their responsibilities, and potential liabilities faced, when they are advised of incidents/complaints of harassment

Key Considerations and Takeaways:

In this case, the employer avoided liability by having a harassment policy in place that had been rolled out to employees, and which had been reviewed and revised in the last year. Further, as soon as Stacey made a formal complaint to HR, the employer followed its internal policies and commenced an investigation, in accordance with its legal obligation under the Ontario Occupational Health and Safety Act [OHSA].

The OHSA defines Harassment as “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” and includes workplace sexual harassment as well. A variety of behaviours can meet this definition and constitute harassment.

With respect to the situation Stacey complained about, it is important to note that one of the types of workplace harassment that has been getting increasing attention is bullying. Bullying is defined as “targeted behaviour with the objective to disempower”, and can take many forms, from obvious conduct such as yelling and physical intimidation, to more subtle behaviours such as ignoring someone and/or excluding them from professional situations and social interactions. While Giorgio did not consider the alleged bullying behaviour serious, it could still meet the definition of harassment as set out in the OHSA, and therefore must be investigated.

Under the OHSA, employers are required to investigate complaints and incidents of harassment. In this case, while the employer investigated as soon as a formal complaint was made, Giorgio exposed the employer, and himself, to liability by failing to act on Stacey’s concerns. The obligation to investigate incidents of harassment means that if the employer becomes aware of conduct that could constitute harassment (and if a member of management is aware, the employer is deemed to be aware), the employer must investigate. This is the case even if no complaint is made, and/or if the employee experiencing the unwanted conduct explicitly says that they do not want the concerns investigated. Failing to address complaints and incidents of harassment as appropriate in the circumstances can lead to liability for both the employer and the supervisor personally.

In responding to the complaint, the employer reduced its potential liability by seeking legal advice before completing the investigation, which allowed the employer to receive guidance about its investigation process. Ensuring that an investigation is conducted as appropriate in the circumstances into each complaint and incident of workplace harassment is key to guaranteeing that the employer has met its obligations. Where there may not be internal capacity or capability to investigate (due to lack of training or experience, for example) the employer should consider engaging an external investigator.

The employer in this case had a clear and up to date policy. Having clear, legally compliant policies is key to ensuring that expectations are set regarding appropriate behaviours and the responsibilities of all parties in the workplace.

However, even the best-drafted policies will not achieve this goal and help the employer limit its liability with respect to workplace harassment if they are not clearly communicated to all employees, including managers, through training. This employer could have minimized its potential exposures by training its workforce regarding policy requirements, conduct expectations, and employee responsibilities. For example, Giorgio would have known that as a manager he has the responsibility to act on both complaints and incident reports of harassment even if the complaining employee prefers him not to.

Employers that have not recently done so should turn their minds to ensuring that their workplace harassment policies are reviewed (and revised, if necessary), and that training, or refresher training, has been conducted for employees generally, and for supervisors specifically, to minimize the possibility of liability such as that faced by the employer in this case study.

Stay tuned for next week’s installment in the case study series, which will address considerations for navigating safety-based work refusals.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.