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Part III: Employer’s Duties Concerning Workplace Harassment

General information

To protect a worker from workplace harassment, it is important that an employer ensure that an investigation is conducted into incidents and complaints of workplace harassment. The investigation must be appropriate in the circumstances.

An employer must ensure an investigation is conducted into workplace harassment, whether a worker has formally or informally made a complaint or the employer is otherwise aware of an incident(s) (for example, if a supervisor witnessed it or learned about it from a third party).

The investigation must be objective. The person conducting the investigation, whether internal or external to the workplace, must not be directly involved in the incident or complaint, and must not be under the direct control of the alleged harasser. This person should have knowledge of how to conduct an investigation appropriate in the circumstances.

Some matters will not require a lengthy investigation (for example, where a bar patron is harassing staff or if there is a complaint that does not, on its face, pertain to workplace harassment). Other situations, such as those involving allegations of sexual harassment by a co-worker over a period of time, may be more complex. The parties to the complaint should be updated periodically on the status of the investigation.

An Investigation Template is attached to this Code of Practice as Schedule E.

Provision(s)

Occupational Health and Safety Act, s. 32.0.7 (1)(a), (b) and (c)

  • (1) To protect a worker from workplace harassment, an employer shall ensure that,
    • (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
    • (b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;
    • (c) the program developed under section 32.0.6 is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment required under clause 32.0.1 (1) (b);

Practice

To comply with this Part of the Code of Practice, the employer must follow all of the requirements listed below.

A. Appropriate investigation

An employer must ensure an investigation appropriate in the circumstances is conducted when:

  1. the employer or a supervisor becomes aware of an incident of workplace harassment by the worker who allegedly experienced it or another worker; or
  2. a complaint, whether in writing or verbal, of workplace harassment is made to the employer, supervisor or the employer’s designated person.

An investigation must be completed within 90 calendar days or less unless there are extenuating circumstances warranting a longer investigation (e.g. more than five witnesses, key witness unavailable due to illness).

The supervisor, manager or person conducting the investigation must not be the alleged harasser and must not be under the direct control of the alleged harasser. The person must be able to conduct an objective investigation. The supervisor, manager or designated person conducting the investigation on behalf of the employer must, at a minimum, complete the following seven steps to an investigation:

  1. The investigator must ensure the investigation is kept confidential and identifying information is not disclosed unless necessary to conduct the investigation or as required by law. The investigator must remind the worker who allegedly experienced workplace harassment, the alleged harasser(s) and any witnesses of any confidentiality requirements under the employer’s workplace harassment program.
  2. The investigator must thoroughly interview both the worker who has allegedly experienced workplace harassment and the alleged harasser(s), if the alleged harasser(s) is a worker of the employer. If the alleged harasser is not a worker of the employer, the investigator must make reasonable efforts to interview the alleged harasser, if the alleged harasser is known to the employer.
  3. The alleged harasser(s) must be given the opportunity to respond to the specific allegations raised by the worker. In some circumstances, the worker who has allegedly experienced workplace harassment should be given a reasonable opportunity to reply.
  4. The investigator must separately interview any relevant witnesses employed by the employer who may be identified by either the worker who has allegedly experienced workplace harassment, the alleged harasser(s) or as necessary to conduct a thorough investigation. The investigator must make reasonable efforts to interview any relevant witnesses who are not employed by the employer if there are any identified by either the worker who has allegedly experienced workplace harassment, the alleged harasser(s) or as necessary to conduct a thorough investigation.
  5. The investigator must collect and review any relevant documents.
  6. The investigator must take appropriate notes and statements during interviews with the worker who has allegedly experienced workplace harassment, the alleged harasser and any witnesses.
  7. The investigator must prepare a written report summarizing the steps taken during the investigation, the complaint, the allegations of the worker claiming harassment, the response from the alleged harasser, the evidence of any witnesses and the evidence gathered. The report must set out findings of fact and come to a conclusion about whether workplace harassment was found or not. The report must be provided to the employer, supervisor or designated person to take appropriate action.

B. Results of the investigation

The employer must ensure that the results of the investigation and any corrective action are provided to the worker who allegedly experienced workplace harassment and the alleged harasser, if they are a worker of the employer, in writing.

The results of the investigation are not the same as the investigation report. The results of the investigation are a summary of the findings of the investigation. The results must be communicated in writing within ten (10) calendar days of the investigation being concluded to the worker who has experienced the alleged harassment.

The employer must also ensure that any corrective action taken, if any (or to be taken) is communicated to the worker who allegedly experienced workplace harassment and the alleged harasser(s), if the alleged harasser is a worker of the employer. The amount of information provided about the corrective action will depend on the circumstances but must indicate what steps the employer has taken or will take to prevent a similar incident of workplace harassment if workplace harassment was found. The corrective action, if any, must be communicated in writing within ten (10) calendar days of the investigation being concluded.

C. Review the workplace harassment program

The employer must ensure its workplace harassment program is reviewed annually or when any gaps or deficiencies in its program are identified as a result of an investigation.

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