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3. Workplace Harassment

Disclaimer: This resource has been prepared to help the workplace parties understand some of their obligations under the Occupational Health and Safety Act (OHSA) and regulations. It is not legal advice. It is not intended to replace the OHSA or the regulations. For further information please see full disclaimer.

Workplace harassment may escalate to threats or acts of physical violence or a targeted worker may react violently to prolonged harassment in the workplace. It is important for employers to recognize these behaviours and to deal with them promptly because they could lead to workplace violence.

The workplace harassment provisions in the Occupational Health and Safety Act (OHSA) will help workplace parties recognize and deal with workplace harassment before it escalates into possible workplace violence.

3.1 Workplace Harassment Policy

Employers must prepare and review a policy on workplace harassment at least annually, as required by the OHSA [section 32.0.1(b) and (c)].

The policy is required regardless of the size of the workplace or the number of workers.

If six or more workers are regularly employed at the workplace, the policy must be in writing and it must be posted in a conspicuous place in the workplace.

If fewer than six workers are regularly employed in the workplace, the policy does not necessarily have to be written [sections 32.0.1(2) and (3)]. However, a Ministry of Labour inspector may order the policy to be in writing [section 55.1].

The workplace harassment policy should:

  • show an employer’s commitment to addressing workplace harassment;
  • consider workplace harassment from all sources such as customers, clients, employers, supervisors, workers, strangers and domestic/intimate partners;
  • outline the roles and responsibilities of the workplace parties in supporting the policy and program; and
  • be dated and signed by the highest level of management of the employer or at the workplace as appropriate (examples may include, but are not limited to, the President, Chief Executive Officer, senior human resources professional or uppermost member of management at the workplace).

The workplace harassment policy should encourage workers to bring forward workplace harassment concerns, whether their own, or information about workplace harassment that they have witnessed.

See Section 7 of this guide for an example to help you develop your workplace harassment policy.

Can the workplace harassment policy and program be combined?

Yes, the policy and program can be combined as long as all of the requirements of the policy and program are complied with.

Can the workplace harassment policy be combined with other policies?

Yes, as long as all the requirements for the policies are complied with. Employers may choose to combine the workplace harassment policy with a policy required by the Act for workplace violence or occupational health and safety.

Employers could decide to combine the workplace harassment policy with another policy, such as an anti-harassment or anti-discrimination policy based on the criteria for harassment in Ontario’s Human Rights Code.

3.2 Workplace Harassment Program

Under the OHSA, an employer must develop and maintain a program to implement the workplace harassment policy. The program must be in writing, and must be developed and maintained in consultation with the joint health and safety committee or health and safety representative, if any [section 32.0.6(1)]. As such, the joint health and safety committee, or the health and safety representative, must be consulted when the program is developed as well as when any subsequent changes are made to maintain it.

The program must include:

  • measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor [section 32.0.6(2)(a)];
  • measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser [section 32.0.6(2)(b)];
  • how incidents and complaints of workplace harassment will be investigated and dealt with [section 32.0.6(2)(c)];
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about individuals involved, will not be disclosed, unless the disclosure is necessary for the purposes of investigating the incident or complaint, or for taking corrective action, or is otherwise required by law [section 36.0.6(2)(d)];
  • how the worker who alleged harassment and the alleged harasser (if he or she works for the employer) will be informed of the results of the investigation and of any corrective action [section 36.0.6(2)(e)]; and,
  • any prescribed elements that may be included in regulations made under the act [section 32.0.6.(2)(f)].

See Section 8 of this Guide for an example to help you develop your workplace harassment program.

To whom can workers report incidents of workplace harassment if the employer or supervisor is the alleged harasser?

The Act requires that the workplace harassment program include information about who incidents and complaints of workplace harassment should be made to if the employer or supervisor is the alleged harasser. The individual could be someone internal or external to the organization.

In a smaller workplace, where the reports would usually be made to the supervisor or employer, the employer must proactively think about which person could be designated. In a larger organization, it may be the same person who would normally receive reports of incidents or complaints (so long as this person was not under the alleged harasser’s direct control, for example) or it may be another person designated by the employer. The employer could consider whether a specific member of the board of directors, a specific person at a business association, a consultant, or another person would be suitable for this function.

Overall, it is important that workers be able to report workplace harassment to a person who will treat the information confidentially, and follow up on the reported incidents or complaints in a timely manner. The program should set out whether this person would only receive and pass on information, or whether this person would be expected to carry out an investigation.

The goal is to have the complaint addressed objectively and investigated in an appropriate manner.

What are the requirements for confidentiality?

The employer needs to set out, in the program, how disclosure of information obtained about a workplace harassment incident or complaint will be limited, including identifying information about the individuals involved. It is important that an employer, as part of his or her investigation into complaints or incidents of workplace harassment, maintain confidentiality to the extent possible.

This program element contemplates that information may need to be disclosed to protect workers, to investigate the complaint or incident, to take corrective action, or because it is otherwise required by law.

In a unionized workplace, the collective agreement may also address what information the union is entitled to obtain from the employer and the role of union representatives during an investigation.

There may also be disclosure obligations arising from an appeal (by either party) to the Ontario Labour Relations Board, other civil litigation, or the grievance arbitration process.

If an employer receives an order from a court or a grievance arbitrator to produce certain information, this would be an example of a situation where information obtained about an incident or complaint would need to be disclosed because it was required by law.

Does an employer have to assess the risk that harassment may occur in the workplace?

The Act does not require an employer to assess the risk of workplace harassment.

3.3 Investigating Incidents and Complaints

In order to protect a worker from workplace harassment, employers must ensure that an investigation is conducted into incidents and complaints that is appropriate in the circumstances [section 32.0.7(1)(a)].

The intent is that an employer should deal with workplace harassment, whether someone has formally made a complaint or the employer is otherwise aware of incidents (for example, if a supervisor witnessed it or learned about it from a third party).

Depending on the circumstances of the incident or complaint, a workplace harassment investigation could be carried out by:

  • someone in the workplace (such as a manager or a supervisor, or a member of the human resources department);
  • someone in the organization (such as someone from another company location or from the corporate head office);
  • someone associated with the workplace or organization (such as someone from another franchise or from a business association); or
  • someone from outside the workplace or organization (such as a licensed private investigator, a human resource professional, or a lawyer).

The person who investigates should not be involved in the incident, and should not be under the direct control of the alleged harasser.

There is no requirement under the OHSA for the person who conducts the workplace harassment investigation to have a license. However, a person whose work primarily consists of conducting investigations into the character or actions of a person may be required to have licence under the Private Security and Investigative Services Act, 2005. For further information, visit the Ministry of Community Safety and Correctional Services’ website.

Any report created in the course of or for the purposes of the investigation is not considered to be an occupational health and safety report that must be shared with the joint health and safety committee or health and safety representative [section 32.0.7(2)].

Employers should also take appropriate interim measures (such as temporary reassignments or shift changes) to protect workers and witnesses while the incident or complaint is being investigated, as may be appropriate. The Act prohibits employers from penalizing workers in reprisal for obeying the law or exercising their rights, which would include reporting an incident of workplace harassment [section 50].

See Schedule E of the Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act for a template to help you investigate incidents or complaints of workplace harassment.

What is an appropriate investigation?

An appropriate investigation into a workplace harassment incident or complaint would generally be timely, fair, and address all relevant issues. An employer would need to treat an incident or complaint seriously, to act upon it promptly, and to allow time and sufficient resources to investigate and deal with it.

Some matters will not require a complicated 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 several years, may be more complex and need a more rigorous investigation.

Stages in a more complex investigation could include:

  • a review of details of the incident or complaint, including any relevant documents;
  • an interview or interviews with the worker alleging harassment;
  • an interview or interviews with the alleged harasser, if he or she works for the same employer;
  • an interview or interviews with the alleged harasser, if he or she is not a worker and if it is possible and appropriate;
  • separate interviews with relevant witnesses;
  • examination of relevant documents or other evidence that pertains to the investigation (such as emails, notes, photographs, or videos);
  • a decision about whether a complaint or incident is workplace harassment; and
  • preparation of a report summarizing the incident or complaint, the steps taken during the investigation, the evidence gathered, and findings (such as whether workplace harassment occurred, did not occur, or that it was not possible to make a determination).

During the investigation, the worker who complained about workplace harassment should be kept informed about the status of the investigation, as should the alleged harasser if he or she also works for the employer.

Documentation of the investigation is also important. Where possible, it should include names, dates, the complaint, details of the incident(s), notes from interviews and meetings, associated documents or evidence, any investigation report, and any actions taken as a result of the incident or complaint and investigation.

If the alleged harasser is not a worker of the employer, or if there are witnesses who are not workers, the individual conducting the investigation should make reasonable efforts to interview these people as part of the investigation if their identities are known and if it is appropriate in the circumstances.

What is an appropriate investigation when the alleged harasser is the employer or supervisor?

The Act requires that the workplace harassment program include information about to whom incidents and reports of workplace harassment should be made to if the employer or supervisor is the alleged harasser [section 32.0.6(2)(b)].

The resulting investigation could be carried out by someone internal or external to the organization. This person should not be directly involved in the incident or complaint, and not be directly under the control of the alleged harasser.

What if there are multiple complaints about the same person?

The employer must ensure that an investigation that is appropriate in the circumstances is carried out. In some cases the investigation could deal with all complaints, but in other cases it may be appropriate to keep the investigations separate. Employers may wish to consider factors such as the degree of similarity of the reported behaviours, the potential impact on individuals involved, expediency and practicality, and the amount and nature of interaction amongst individuals involved when making decisions about whether to conduct multiple or separate investigations.

Does the employer have to hire a person who specializes in harassment investigations?

As per clause 32.0.7(1)(a), the employer must ensure that an appropriate investigation is done, but the Act does not specifically provide who must investigate.

In smaller workplaces, it may be the employer, the direct supervisor, or a supervisor from another department who conducts an investigation. In larger workplaces, there may be experienced human resources or human rights staff who can conduct these types of investigations.

In certain circumstances, a Ministry of Labour inspector may order the employer to have an investigation carried out by an “impartial person possessing such knowledge, experience, or qualifications as are specified by the inspector”. See Section 3.7 of this guide for more information.

Does the investigation have to be completed within a certain time period?

The Act does not specifically require that the investigation be completed within a certain time period. The length of time will depend on the nature of the circumstances and complexity of the incident or complaint. Some investigations may only take a few hours or days, while others may take longer – for example, up to 90 days. In exceptional cases, an investigation may take even longer.

Investigations can be stressful for the worker alleging harassment, the alleged harasser, and even on other workers. Investigations should therefore be done as quickly as possible, while allowing for sufficient time for a complete, thorough, and fair investigation.

Is the employer’s program the only way workers can address a workplace harassment incident or complaint?

Workers should use the process set out in their workplace’s harassment program to deal with their concerns about harassment, where possible.

A worker may also seek resolution of a workplace harassment incident or complaint outside of the employer’s internal investigation procedure.

For example, a worker may:

  • contact the Human Rights Legal Support Centre for help, or the Human Rights Tribunal of Ontario directly, to file an application to have their matter heard if the alleged harassment is based on one of the grounds prohibited under Ontario’s Human Rights Code; or
  • seek to resolve harassment issues through the grievance arbitration process if they are represented by a union; or
  • seek to resolve harassment issues through civil litigation, depending on the circumstances.

Could a workplace use alternative dispute resolution or mediation to resolve a complaint of workplace harassment?

The employer must ensure that an investigation is conducted that is appropriate in the circumstances. Alternative dispute resolution or mediation cannot replace the investigation.

It may be possible, if the parties agree, for alternative dispute resolution to form part of the resolution of the complaint after the investigation is completed. The process and results should be documented.

The employer would still have to provide the results of the investigation, in writing, to the appropriate workers.

Can the worker alleging harassment or the alleged harasser use a support person during the investigation?

Support for workers during workplace harassment investigations may be available from a number of sources, including unions, peer support networks, joint health and safety committee members, employee assistance networks or the worker’s lawyer or legal representative. The workplace harassment program should set out clear roles for all parties.

What if the worker who was allegedly harassed will not co-operate with the investigation?

The employer has an obligation to investigate once it becomes aware of workplace harassment, including talking to the worker who was allegedly harassed, the alleged harasser (if working for the employer) and relevant witnesses. All workers should be encouraged to cooperate with an investigation.

If there is a refusal to co-operate, the employer should try to find out the reason in order to identify potential coercion or reprisal. The employer would still have to provide the results of the investigation, in writing, to the appropriate workers.

What if an investigation reveals concerns about workplace violence?

Under the OHSA, an employer must take all precautions reasonable in the circumstances to protect a worker, including from workplace violence [section 25(2)(h)]. In addition, an employer has specific duties with respect to workplace violence [sections 32.0.1 to 32.0.5].

Therefore, if an investigation indicates that workplace violence may occur or is likely to occur, the employer must take precautions reasonable in the circumstances to protect workers.

3.4 Results of an Investigation

Employers must ensure that the worker who was allegedly harassed is informed in writing about the results of a workplace harassment investigation and of any corrective action that has been or that will be taken as a result of the investigation. This information must also be provided to an alleged harasser who works for the employer [section 32.0.7(1)(b)].

The purpose of this provision is to ensure that these specific workers are aware of what has happened as a result of the incident or complaint and the investigation into that incident or complaint.

The results are meant to be a summary document, outlining the findings of the investigation. If the investigation concluded that workplace harassment occurred, information about corrective actions taken must be included.

The results are not considered to be an occupational health and safety report that must be shared with the joint health and safety committee or health and safety representative [section 32.0.7(2)].

What are corrective actions?

Corrective actions are actions taken to try to prevent a reoccurrence of workplace harassment.

Where the harassment arises from customers, clients, patients, or the public towards a worker, the employer could deal with the incident by modifying its service (such as using the telephone or email as the primary means of contact), or even, in some cases, a refusal of service depending on the circumstances.

Where the investigation finds that harassment arises from a worker, supervisor, or other person associated with the workplace, there could be individual corrective action taken (such as apologies, education, counselling, shift changes, reprimands, suspension, job transfer, or termination) depending on the employer’s policy, and the nature or severity of the behaviour. Corrective actions could also be broader, especially where the investigation of an incident or complaint shows that workplace harassment is prevalent or commonplace. An example would be training for everyone in the workplace or in a unit on workplace harassment, causes and solutions.

If the investigation of an incident or complaint finds that there were shortcomings in the workplace harassment policy or program, corrective action could include revising the policy or program.

What if the alleged harasser has left the workplace?

In some workplaces, incidents and complaints of workplace harassment arising from customers, clients, patients, or the public may be dealt with immediately by a manager or other designated staff person. For example, the alleged harasser may be asked to leave.

The employer should still make sure that the response to the incident or complaint is recorded, and that the worker or workers involved are provided with information about the actions taken.

What if the alleged harasser works for another company?

If the alleged harasser works for another company, there is no requirement for the employer to provide the results of the investigation and any corrective action to him or her.

However, if the finding of an investigation is that workplace harassment did occur, the employer should take steps to prevent the possible future harassment of its own workers.

3.5 Review of Workplace Harassment Program

In order to protect a worker from workplace harassment, an employer is required to review the workplace harassment program as often as necessary, but at least annually, to ensure that it adequately implements the workplace harassment policy [section 32.0.7(1)(c)].

This review should focus on whether the measures and procedures are current and if there are any deficiencies or gaps that need to be addressed. The program may or may not be revised as a result of the review.

The requirement to review the program “as often as necessary” could be triggered if within 12 months of the latest review, an incident, complaint, or investigation revealed:

  • deficiencies or gaps in the measures and procedures set out in the program; or
  • measures and procedures that were not followed in a particular harassment case.

3.6 Information and Instruction on Workplace Harassment

An employer must provide appropriate information and instruction to workers on the contents of the workplace harassment policy and program, as required by the OHSA [section 32.0.7]. Workers could be full-time, contract, casual, temporary, or part-time. The definition of worker in the OHSA can include unpaid students, learners and trainees in certain circumstances. Supervisors are also workers.

All workers should be aware of the employer’s policy on workplace harassment. Workers should also:

  • know how to report incidents of workplace harassment to the employer or supervisor;
  • know how to report incidents of workplace harassment where the employer or supervisor is the alleged harasser;
  • know how the employer will investigate and deal with incidents or complaints of workplace harassment;
  • know how information about an incident or complaint of workplace harassment will be kept confidential; and,
  • know that the results of an investigation and any corrective actions will be provided to the worker who alleged harassment and to the alleged harasser (if working for the same employer).

Workers may need other information and instruction on workplace harassment, depending on their jobs. For example, some workers may need to be trained to recognize and respond to harassment or trained in specialized techniques to deal with harassment.

Supervisors may need additional information or instruction, especially if they are going to receive complaints or follow up on reported incidents or complaints of workplace harassment. This could include:

  • how to respond appropriately and sensitively to complaints or disclosures of harassment;
  • how to collect pertinent information about the complaint;
  • how to investigate a complaint or otherwise take action;
  • how to deal with confidentiality before, during, and after an investigation;
  • how to document an investigation; and
  • how to keep records.

Additionally, employers should make sure that any person who is to receive complaints of workplace harassment from workers (for example, a joint health and safety committee member, a union representative, or a person who is designated to receive reports of workplace harassment if the employer or supervisor is the alleged harasser) knows what his or her role is, and what to do with the information received.

When the workplace harassment policy or program is revised, employers may need to provide additional information and instruction to workers.

Employers, supervisors and unions also need to be aware of their responsibilities to prevent and address harassment prohibited under Ontario’s Human Rights Code. See Section 4.4 of this guide for more information.

3.7 Inspector’s Order

An inspector may order an employer to have an investigation into an incident or complaint of workplace harassment carried out by “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.” This investigation would be conducted at the expense of the employer, and a written report would be provided to the employer [section 55.3].

The inspector would decide the criteria for knowledge, experience or qualifications to be set out in the order. The specific criteria would depend on the circumstances of each case, and could include:

  • knowledge of the workplace harassment and reprisal provisions under the OHSA, and other applicable laws;
  • experience in conducting workplace investigations, dealing with confidentiality and privacy in the context of those investigations, preparing comprehensive reports, and dealing with complex and/or sensitive situations.

Who would be considered to be an “impartial person” under section 55.3?

An “impartial person” would be someone who is unbiased, with no conflict of interest, and in good standing with their professional body (if applicable). While one may expect that an “impartial person” may be someone external to the workplace or organization, in some circumstances it could be someone in the organization.

An example of a person an employer could engage to conduct a workplace investigation, subject to the circumstances of the case and to any criteria set out in the order, could include someone who is:

  • from a different branch of the same company;
  • from the corporate office; or
  • from another related franchise.

Where it would be more appropriate for a third party to investigate, the person could be someone who is:

It should be noted that if someone conducts workplace investigations as a primary part of their business, they need to be properly licensed, usually as a lawyer or a private investigator.

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Disclaimer: This web resource has been prepared to assist the workplace parties in understanding some of their obligations under the Occupational Health and Safety Act (OHSA) and the regulations. It is not intended to replace the OHSA or the regulations and reference should always be made to the official version of the legislation.

It is the responsibility of the workplace parties to ensure compliance with the legislation. This web resource does not constitute legal advice. If you require assistance with respect to the interpretation of the legislation and its potential application in specific circumstances, please contact your legal counsel.

While this web resource will also be available to Ministry of Labour inspectors, they will apply and enforce the OHSA and its regulations based on the facts as they may find them in the workplace. This web resource does not affect their enforcement discretion in any way.