From allegations of sexual harassment against former Fox News CEO Roger Ailes to the court case against former CBC radio host Jian Ghomeshi stemming from complaints of abusive behaviour both inside and outside the workplace, recent high-profile cases of harassment and violence have made it clear that many organizations struggle to uphold appropriate standards of conduct within their ranks.
For its part, the Ontario government recently passed a law to strengthen protections against workplace harassment: Bill 132, An Act to amend various statutes with respect to sexual harassment, domestic violence and related matters. Bill 132 amends the Occupational Health and Safety Act and imposes positive duties on employers to foster harassment-free workplaces. Employers are required to investigate complaints of workplace harassment in compliance with the new law, failing which the Ministry of Labour has the power to order an external investigation at the cost of the employer. The Ministry of Labour can even compel an employer to reconduct an investigation, at the employer’s expense, if the original investigation is deemed inadequate.
In many organizations, it falls to in-house legal departments to address allegations and incidents of harassing or violent behaviour and to ensure compliance with relevant laws. As such, it is imperative that organizations involve in-house counsel in the process of establishing investigation protocols, as well as during the investigation review process, to ensure that investigative actions can withstand potential challenges from the Ministry of Labour.
More so, under the legislation employers also face greater legal exposure for failing to prevent workplace harassment, including fines of up to $500,000 for corporations that fail to comply, not to mention the potential for penalties or prosecution under the OHSA.
That said, administering internal workplace investigations can be complicated. First, the minimum standards for a compliant workplace investigation are not clear. The law with respect to the minimum standards of procedural fairness is not settled, and there is sparse consideration of the way Bill 132 will be applied.
Similarly, a plain reading of Bill 132 suggests an organization’s right to claim litigation privilege over documents created pursuant to the investigation will be diminished, because an investigation is arguably conducted for the dominant purpose of compliance with Bill 132 and an organization’s internal policies, rather than for the dominant purpose of litigation. If it is important that privilege attach, in-house counsel must ensure that the appropriate steps are taken to establish solicitor-client privilege. This may include retaining external counsel and ensuring that the retainer agreement and terms of reference are carefully prepared to protect that privilege.
Compliance need not be overly burdensome. A proactive approach to comply with the new Bill 132 requirements will help mitigate potential legal exposures and strengthen workplace protections.
The first step is to develop effective policies and procedures that set conduct expectations and documentation processes, then communicate those policies to all workers. These policies should be updated annually, and both managers and employees should receive regular training to stay abreast of any changes.
Next, foster a culture of shared responsibility by enforcing the legal obligations of your workers to report and address workplace harassment, while maintaining an open-door policy that encourages employees to speak up when harassment occurs. That includes defining a process to select appropriate investigators when an investigation is required. Qualified third-party investigators are often the best choice given their presumed impartiality.
Lastly, you should always retain the right to discipline employees when necessary. Under Bill 132, normal management and direction of workers does not constitute harassment, which means that employers are permitted to review and manage the work of an underperforming employee. That is, of course, assuming your organization has reserved the right to discipline in its employment contracts. Doing so will allow you to make HR and operational decisions without the threat of harassment-related complaints or litigation.
Laura Williams is the founder and principal of Williams HR Law in Toronto.