If you are responsible for managing or giving advice on employee behavioural issues for a federally-regulated employer, you already know that in certain cases you are obligated to initiate a formal process to address harassment concerns, which sometimes involves conducting an investigation. You are also familiar with the situations most likely to trigger a workplace investigation and are no doubt acquainted with the Canada Labour Code framework and the Work Place Harassment and Violence Prevention Regulations (the “Regulations”).
In this post, I will address the less obvious cases that can have many pitfalls: a verbal complaint, allegations tied to performance management, or a file closed too swiftly. Some of these mistakes, contrary to the applicable legal framework, may prove costly for the employer. Indeed, the Regulations appear to grant full control to the principal party (hereinafter “the complainant”) to choose how the complaint will be resolved.
You may have an internal process that very clearly instructs employees on how to make a formal complaint: an e-mail to a specific manager, a call to the labour relations or human resources team, a form to complete, etc. It is certainly useful to have a clear and uniform policy and procedure to follow, both for the affected employees and for the team charged with applying them. However, one must be careful not to be overly rigid on form when deciding whether what has been received is sufficient to trigger the process in relation to a harassment complaint.
Indeed, a complaint can be written, but it can also be verbal. Moreover, the only conditions set out for filing a complaint or a “notice of an occurrence” (to use the exact term) are those provided by the Regulations. A simple verbal communication with a manager or a call to the HR call centre, if that team is designated to receive employees’ harassment concerns, may technically suffice to trigger the process and require the employer to comply with a series of obligations and deadlines.
The fact that the complainant does not specifically say that it is a harassment complaint is not fatal either. In such a situation, it is important to pay particular attention to what is alleged and to examine the situation more closely if those details are not provided. For example, when an employee contacts the designated service or team to complain about a performance rating, you might be tempted to redirect the employee to the existing process to challenge a performance review. But if the employee also raises that this review is unfair toward them, it becomes necessary to dig further to obtain additional clarification, as this employee may now have become a complainant.
Indeed, while performance management may form part of the reasonable exercise of managerial rights and generally does not constitute harassment, it is possible that in explaining why they believe their evaluation is unfair, the complainant may go on to allege workplace harassment, either explicitly using that term, or by describing behaviours that are akin to it. The complainant could, for example, explain that the performance review was rendered by the manager based on intentionally incorrect justifications or by making disrespectful comments.
Such an allegation, if proven at the end of an investigation, could lead to a finding of workplace harassment. An employer should, therefore, act with caution in such a case and trigger its formal harassment process.
Let us continue with this scenario: following a first meeting with the complainant, you are of the opinion that the complaint does not constitute harassment within the meaning of the policy-you share your opinion with the complainant. However, the complainant indicates their disagreement with you by stating that the treatment they received from the manager was unfair toward them and that they feel humiliated by some of their comments.
In such a scenario, can you terminate the complaint process initiated by the complainant? Everything in the Regulations and in the IPG[1] on this subject suggests that you cannot; this is, therefore, another trap for employers.
Section 23(3) of the Regulations provides that “(…) resolution of the occurrence includes, but is not limited to, a joint determination by the principal party and the employer or designated recipient that the notice of occurrence (…) does not describe an action, conduct or comment that constitutes harassment and violence (…)”
The IPG clarifies, with regard to subsections 23(2) and 23(3), that “in the event of disagreement” between the employer and the complainant on whether the alleged behaviour constitutes an incident of harassment,” “the complainant may choose to proceed to an investigation” (or, if possible, another mode of resolution), under certain conditions.
Section 25(1), meanwhile, provides that “(…) if an occurrence is not resolved under section 23 or 24, an investigation of the occurrence must be carried out if the principal party requests it.”
Therefore, in case of disagreement between the complainant and the employer, the employer should exercise great caution before terminating the process; this may require a consultation with the employer’s counsel.
Be careful, for example, if you conduct a threshold assessment of the complaint and wish to use that analysis to unilaterally put an end to the complaint process without investigating. The legal framework appears to provide that you must convince the complainant that the alleged behaviour would not meet the definition of harassment, even if proven. To ensure that such a discussion with the complainant is fair, it seems essential that you act with transparency and inform the complainant that they retain the right to continue the complaint process-under certain conditions-even if you disagree on the nature of the complaint.
There is a good chance that your situation is not as simple as the scenario presented above and that other considerations may influence your decision whether to investigate a harassment complaint. It may, therefore, be helpful to confirm the implications of your case with legal counsel, who can assist in assessing the associated risks and the range of available options (for example, conducting a more expedited investigation than usual). When in doubt, it is generally better to err on the side of caution.
