Complaints must be dealt with as soon as possible after they arise and in an objective, serious and sensitive manner
In the wake of the harassment allegations levelled against former chief of defence staff General Jonathan Vance and the earlier blistering indictment of former governor general Julie Payette, the cautionary words of poet Jean de la Fontaine come to mind: “A person often meets his destiny on the road he took to avoid it.”
The #MeToo movement profoundly reshaped the public’s expectations of employers in terms of monitoring and sanctioning workplace harassment. Time and again, revelations of workplace impropriety result in public condemnation not only of the perpetrator, but their employer as well. While the brand damage to the company can be significant, employers must also turn their mind to the legal repercussions of deficient workplace harassment investigations.
Some of the most remarkable blunders that I observe employers make emanate from their failure to deal with allegations in a timely or sensitive manner. A common justification for mishandling such a complaint is: “We did not receive a formal or written complaint, so considered it unnecessary to conduct an investigation.”
The law requires employers to “investigate” in some form, even verbal complaints of harassment.
Or, as was the case with Gen. Vance, where legitimate claims of impropriety were raised but no meaningful action taken because the organization lacked a suitable reporting and investigatory mechanism to begin with.
To put such excuses before a court or tribunal would be futile. Addressing allegations of harassment will inevitably be a source of stress and consternation for everyone involved, but the fallout of a deliberate, or even innocent, failure to conduct a proper investigation can have devastating consequences, not the least of which are potentially severe financial penalties.
Human rights damages have historically been low, but in recent years Canadian courts and tribunals have shown an openness to imposing increasingly high damage awards. Take for example the 2018 case of AB v Joe Singer Shoes, where the court awarded $200,000 in damages — one of the largest handed down by Human Rights Tribunals to date. The sexual assault and harassment case was made against the perpetrator and the company, both of whom were found jointly liable for the full amount. In addition to these damages for “injury to dignity, feelings and self-respect,” the company also had to pay damages for the loss of the complainant’s job.
Failure to conduct a proper investigation can itself entitle a complainant to significant compensation. The City of Calgary v CUPE, Local 38 case of 2013, is a cautionary tale. An arbitration panel levelled a damage award of nearly $870,000 (consisting of general damages, loss of past and future income, loss of pension entitlements and “special” damages for the cost of future counselling) against the City of Calgary for its inadequate response to the complainant’s allegations of sexual harassment. As much as $150,000 of that was for general damages arising from the insensitive conduct of the city managers in charge of investigating the complaint.
The city had comprehensive, respectful workplace policies in place and did launch a full investigation. So what went wrong? In short, the complainant’s superiors did not take the initial complaint sufficiently seriously, failed to follow through with parts of the investigation, required the complainant to attend meetings with a psychiatrist, refused to allow her to return to work until she provided a doctor’s certificate, and took away some of her responsibilities upon her return. In the words of the arbitration panel, the “steps that were taken by managers to deal with the situation were not supportive as contemplated by the City’s Policy and worsened the situation perhaps dramatically.”
How many of these errors are found in many investigations?
This case was an extreme one, but its lesson is applicable to all employers: proceed with caution and utmost sensitivity when conducting internal harassment investigations.
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There is no formula for determining what kind of investigation will withstand scrutiny.
As with many human rights-related matters, the standard of what is reasonable differs in every case. Courts and other decision-making bodies are mindful of the fact that a mom and pop shop cannot inject the same resources into developing its policies and procedures as the Canadian federal government, or the City of Calgary.
But the basic requirements for all employers remain the same: deal with harassment complaints as soon as possible after they arise and do so in an objective, serious and sensitive manner. This is not a difficult standard to meet, regardless of the size and nature of their business.
Also, do not let investigations drag on for weeks. Employees suspended pending investigation virtually never return to the workplace, whatever the outcome and, if exculpated, can have their own claims against the employer.
While a completely risk-free complaints and investigation mechanism is a moving target, employers should consider implementing a mix of proactive and reactive measures. This might include semi-regular human rights training (at minimum have a respectful workplace policy in place and make its existence known to all employees), mechanisms for confidential reporting, standardized investigation protocols, and employing a neutral party such as a human resources professional to manage and enforce those measures.
Regardless of the specific procedures implemented, the outcome of a good faith effort to address harassment will always be preferable to that which will arise where complaints are minimized or neglected.
Finally, unless your company is too small, have someone, usually from human resources, trained in investigations so they can address the situation immediately without having to acquaint themselves with the company’s personnel, policies and cultures.
Just as a shoddy investigation can be expensive, outside investigators can be just as much so. I have seen many investigations conducted for fees of $100,000 or more concerning employees whose severance entitlements, even without cause, is a fraction of that. The move to engage outside investigators has itself become one of the great legal boondoggles and has become, unless the conduct of a C-suite executive is at issue, an unnecessary cost.
Got a question about employment law during COVID-19? Write to Howard at firstname.lastname@example.org