When is an employer’s duty to conduct a workplace investigation triggered?

Generally, whenever there is a complaint of violence, harassment or sexual harassment in the workplace, an employer must conduct a workplace investigation.

Note – this article will not discuss the scope or requirements of any workplace investigation. Rather, this article will simply discuss when an employer must conduct a workplace investigation.

Workplace violence

Under the common law, and specifically under Sections 25(2)(h) and 32.0.5 of the Occupational Health and Safety Act (Ontario), every employer has a duty to conduct a workplace investigation after an incident of workplace violence has allegedly occurred. In other words, if an employer gets a complaint about violence at work, or if the employer witnesses violence at work, it must conduct an investigation. Otherwise, the employer will be in breach of both a worker’s common law right to be free from violence at work and a worker’s right to a violence-free workplace as per the Occupational Health and Safety Act.

What is workplace violence? “Workplace violence” means:

1. physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
2. an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
3. a statement or behavior that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

Workplace harassment

In addition, under the common law, and specifically under Sections 25(2)(h) and 32.0.7(a) of the Occupational Health and Safety Act (Ontario) and section 5(2) of the Human Rights Code (Ontario), every employer has a duty to conduct a workplace investigation after an incident of workplace harassment has allegedly occurred. In other words, if an employer gets a complaint about harassment at work, or if the employer witnesses harassment at work, it must conduct an investigation. Otherwise, the employer will be in breach of both a worker’s common law right to be free from harassment at work and a worker’s right to a harassment-free workplace as per the Occupational Health and Safety Act and the Human Rights Code.

What is workplace harassment? “Workplace harassment” is bothersome comments or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. Note that anyone can commit workplace harassment – the harasser need not be an employee. For example, if a fast-food worker is harassed by a customer, that is still workplace harassment just the same as if a co-worker had done the harassment. The same rule applies to all individuals that come into contact with workers vis-a-vis workplace violence and workplace sexual harassment too.

Without limitation, workplace harassment may take the form of:

• jokes or disses meant to offend someone;
• cyber bullying;
• yelling and screaming at someone; and
• comments about weight, etc.

There can be no specific example of every kind of workplace harassment. Thus, before deciding to conduct a workplace investigation, the employer must ask itself if the conduct complained of was “reasonably” unwelcome. In other words, would a reasonable person in the same shoes as the complainant find such conduct unwelcome? Unless it is abundantly clear that no reasonable person would find the conduct complained of unwelcome, an investigation should proceed.

Workplace sexual harassment

Moreover, under the common law, and specifically under Sections 25(2)(h) and 32.0.7(a) of the Occupational Health and Safety Act (Ontario) and sections 7(2) & (3) of the Human Rights Code (Ontario), every employer has a duty to conduct a workplace investigation after an incident of workplace sexual harassment has allegedly occurred. In other words, if an employer gets a complaint about sexual harassment at work, or if the employer witnesses sexual harassment at work, it must conduct an investigation. Otherwise, the employer will be in breach of both a worker’s common law right to be free from sexual harassment at work and a worker’s right to a sexual harassment-free workplace as per the Occupational Health and Safety Act and the Human Rights Code.

What is workplace sexual harassment? “Workplace sexual harassment” means:

1. engaging in a course of bothersome comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
2. making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Employers should remember that all individuals interpret things differently, and, under the law, a perpetrator takes his or her victim as they come. There is no thin skin defense. Thus, an employer should always conduct a workplace investigation in every complaint for sexual harassment. The employer can determine only after an investigation whether the comments or conduct complained of ought to reasonably have been known to be unwelcome. What may seem innocuous at first may still be sexual harassment. Only a workplace investigation can find out. This is especially true post #MeToo.