Investigations & Mediation

Most employers will, at some point during the lifetime of their business, have to deal with a workplace incident that results in a harassment or discrimination complaint. Although you can always hope no such incidents occur, you should be prepared to deal with them if they do. In some instances, this may require a workplace investigation.

The challenge for many employers is that it can be hard to know where to start.

Creating a solid foundation

A crucial first step for dealing with workplace harassment, which includes sexual harassment and violence, is to develop, post, regularly update, and reinforce anti-harassment policies that comply with Ontario’s Occupational Health and Safety Act (“OHSA”). The OHSA requires employers to develop written workplace violence and harassment policies, and then review and update them yearly. Every workplace harassment policy should feature the following:

• Clearly articulated definitions of discrimination and harassment that align with the Code and OHSA;
• Measures and procedures that enable employees to make complaints without fear of reprisal;
• A procedure for how the employer will address and investigate incidents and complaints of workplace harassment and discrimination.

Regarding discriminatory harassment and discrimination, Ontario’s  Human Rights Code (“Code”) recommends discrimination and harassment policies, which cover discrimination or harassment that occurs in the workplace, based on any of the prohibited grounds, such as Age, Gender, Race, Colour, Ancestry, Creed (religion), Ethnic Origin, Citizenship, Sex  (including pregnancy, gender identity), Sexual Orientation, marital Status, Disability, Receipt of Public Assistance or Family Status. Developing workplace harassment policies, including Code-based discrimination or harassment, ensures you satisfy your statutory obligations pursuant to the OHSA and Code.

If you do not already have workplace harassment policies in place, you have contravened the OHSA, and should immediately rectify the breach. Contacting an experienced employment lawyer can begin this process.

Before commencing a costly investigation, consider mediation

Mediation can be a cost effective and efficient method to resolve a dispute in instances where the allegations are not serious and do not trigger an obligation to investigate. For example, in a situation where there is a workplace conflict, but harassment that meets the OHSA definition has not been alleged. There are numerous benefits to mediation, such as:

• Early mediation can prevent workplace conflicts from escalating into more serious instances of workplace harassment or discrimination;
• Mediation is less costly and more time efficient than a workplace investigation;
• Mediation is less disruptive to the workplace; and
• Mediation can lead to reconciliation between the parties and a mutually agreeable outcome.

The Investigator

If mediation is not an option, your first step is to consider what kind of investigation is appropriate for the situation. Investigations are costly if you need to hire an external investigator, and not every situation warrants it.  However, if you err and conduct an internal investigation with inexperienced staff, or staff that may have or be perceived to have a bias, there could also be costly consequences. If the situation involves senior management, or there are complex allegations, you should find an experienced external workplace investigator. Where you might also need a legal opinion along with the investigation and findings, you should seek out a lawyer with investigation experience.

Whether you choose to an internal or external investigator, bear in mind that the ideal investigator is familiar with OHSA, as well as the Code where discrimination is also alleged, and should also be familiar with workplace law and the employer’s policies and practices.

Dealing with the results of an investigation

The investigator will provide you with a report on the findings and recommendations of the investigation. In some instances, you may ask the investigator for a legal opinion to accompany the report. If you do, you must hire a lawyer with workplace investigation experience.

Depending on the results of the investigation, you may be required to take action. For example, if the investigator concludes that harassment or discrimination did, in fact, occur, you could be required to take disciplinary measures against the respondent, up to and including termination for cause in serious situations.

In Toronto, mediation is a mandatory step in taking a claim made by an employer or employee to trial. But across Canada, mediation is used to settle most employment grievances, with a very small percentage of cases ever going to trial.

As a neutral third party, the mediator helps disputing parties find a mutually agreeable solution. The purpose of mediation is not to determine a winner or loser, but to resolve issues quickly and cost-effectively. Agreements reached in mediation are set out in writing and signed by the parties and their lawyers.

In the context of litigation, choosing a lawyer as mediator has its advantages. A depth of knowledge in all legal aspects of employment law can be key to a successful resolution.

Internal workplace mediation can be used to resolve disputes between workers or workers and management. Finding a solution before a dispute leads to legal action can save considerable time, money and disruption to daily operations. We approach these mandates by clarifying the client’s objectives and designing a process that considers the interests of all parties to the dispute, while maximizing cost- and time-efficiencies.

We are sensitive to the dynamics of culture and power that can complicate the resolution of workplace issues. Whether in the context of litigation or internal workplace disputes, we resolve disagreements as quickly, painlessly and respectfully as possible, minimizing the dysfunction that workplace conflicts create.