Recognizing and Dealing with “Informal” Harassment Complaints

Update:  As of 8 September 2016, the “Bill 132” amendments to Ontario’s Occupational Health and Safety Act require employers to investigate all “incidents and complaints” of workplace harassment (section 32.0.7(1)).  So-called “informal harassment complaints” would likely be seen as “incidents” under this legislation.  Upon being informed of a possible incident of workplace harassment, employers should investigate in an impartial, professional and appropriate manner, regardless of whether a formal complaint was made or not.

The “Bill 168” provisions in Ontario’s Occupational Health and Safety Act (specifically, section 32.0.6(2)(a)) require all employers to implement measures and procedures to report incidents of workplace harassment.  Based on their workplace harassment policies, employers have adopted different reporting procedures.

Nonetheless, most employees first report harassment to their supervisors or human resources by a discreet “can I mention something?” type query, and not necessarily following the exact policy-prescribed procedure using the mandated form of complaint.

In the case of Newton v. Toronto, the Human Rights Tribunal of Ontario ruled that “management’s initial failure to take adequate steps to respond to (the complainant’s) concerns” is a factor justifying increased compensation to the complainant, despite the fact that the complainant did not file a formal complaint in accordance with employer policy until later.  In other words, internal company procedures provide no defence for ignoring incidents of harassment that have been brought to the attention of management or human resources.

As employers are responsible for providing a harassment-free workplace, even in the absence of a formal harassment complaint, the employer may be able to initiate an investigation for potential disciplinary action, depending on corporate policy.  The “reluctant complainant” would be considered a witness in such an investigation, but should be informed at the beginning what are the reasons for investigating as well as the process.  Some situations where an employer-initiated investigation may be appropriate include:

- Alleged behaviour that is sexual in nature (sexual activity is always inappropriate in the workplace);

- The complainant appears to be targeted on human rights legislation proscribed grounds;

- Physical violence or destruction of property (corporate or personal) is alleged;

- Death threats, threats of bodily harm, or threats of sexual assault;

- Allegations of reprisal;

- This is by no means an exhaustive list.  If in doubt, err on the side of caution and conduct an investigation.

On the other hand, some conflicts can be addressed via management action directly, such as:

- Verbal work-related conflicts, such as disagreements of a professional nature;

- Allegations of professional incompetence (“my boss is stupid”);

- Heavy workloads for everyone;

- General, non-targeted dissatisfaction with work arrangements, e.g. scheduling.

If a formal complaint has been filed, it must be investigated in accordance with policy.

Always remain neutral and non-judgemental on whether a formal complaint should be filed by a potential complainant.  Never say anything that can be interpreted as discouraging or encouraging a formal complaint.  Any discouragement risks being interpreted in a judicial process as the employer not taking harassment complaints seriously, while any encouragement may be construed as the employer being unfair and prejudicial to the respondent.  It is best to inform potential complainants that it is their choice whether to pursue a formal complaint in their name, and describe the steps to do so.

Regardless of whether a harassment complaint is made informally or formally, management representatives and human resources must respond reasonably by taking it seriously, dealing with it promptly, demonstrating care of all employees, investigating objectively, and acting appropriately following investigation.

(The above is for general information only and does not necessarily apply to all organizations.  For legal advice, please contact your legal counsel.)


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