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Bullying and Harassment – Understanding your Obligations as an Employer

January 25, 2021

The circumstances surrounding the resignation of Governor General Julie Payette underscore the obligations of employers. At its base, the requirement for Canada to deal with the difficulties associated with Ms. Payette arise because of duties and obligations imposed in employment relationships. After complaints arose, Canada hired an independent consulting firm to complete a review (investigation) into reports of a toxic environment and workplace harassment at Rideau Hall. The investigation occurred after a number of staff left with complaints of bullying and harassment. What followed provides an example of the obligations on employers to provide a safe and harassment free work environment and how that obligation is satisfied.

WorkSafe legislation imposes an obligation on employers to take reasonable steps to prevent bullying and harassment. When bullying and harassment in the workplace is reported to an employer their first obligation is to conduct an investigation into the alleged actions. In the case of Ms. Payette, the employer hired an external firm to conduct the investigation. The steps in a workplace investigation include the following:

  • review of the complaint;
  • interview of the complainant(s) to obtain particulars of the complaint;
  • interview of all potential witnesses;
  • interview of the respondent;
  • review of all relevant documents including electronic communications;
  • review of relevant internal workplace policies such as bullying and harassment policies and respectful workplace policies; and
  • findings of fact.

An investigator may make recommendations following the completion of the investigation, either in the report itself or in a reporting letter to the employer following the conclusion of the investigation. The results of the investigation are typically shared with the complainant and respondent, either by sharing a copy of the actual report or by providing a summary of the results of the investigation.

Employers use the resulting investigation report to make decisions about any changes to implement in the workplace, including whether terminations should occur. In Ms. Payette’s case the results of the investigation were likely shared with her and she made a decision to resign from her position as Governor General. If she had not resigned, depending on the findings of the Investigator, Canada may have been required to take steps to satisfy their obligation to provide a safe and harassment from workplace for employees.

The importance of the investigation cannot be overstated. Employers rely on the results of the investigation to make decisions and when the investigation is faulty the resulting decisions can have significant consequences for the employer. There are many examples in our courts of judges awarding punitive and aggravated damages to dismissed employees following a finding that the investigation that was conducted was not adequate, was biased or was in some other form insufficient. WorkSafe also imposes an obligation on employers to conduct adequate investigations and a failure to do so can result in fines and penalties and compliance orders. As important as the legal jeopardy that can result from an insufficient investigation, the workplace itself can suffer if employees do not have the confidence that full and fair investigations will be conducted.

There is tremendous learning to be had from the unfortunate happenings at Rideau Hall. It is a very public example for all employers of the importance of satisfaction of the duty to provide a safe and harassment free workplace. That requirement exists regardless of the organization and regardless of the individuals involved.  The resignation of Ms. Payette demonstrates that regardless of how much power, how important or how public the individual is, the duty on employers exists and they must take action in the face of complaints. In this case, complaints were made, an investigator was hired. The investigator conducted a fulsome investigation and made findings of fact. Changes in the workplace resulted. The employer’s obligation was satisfied.

This update was authored by Rose Keith. Looking for more information regarding bullying in the workplace? Contact Rose at [email protected] or anyone else listed on the authors page.

Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: January 25, 2021.

©Harper Grey LLP 2021

 

 

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