RETURN TO WORK CASE STUDIES FROM THE FRONT LINES – CASE STUDY #9

Addressing Misconduct in the Time of COVID-19: Navigating Workplace Harassment

The COVID-19 pandemic has brought many challenges for employers to navigate. As we have discussed previously in this case study series, many workplaces have been experiencing an increase in conduct issues due to the high levels of stress employees and employers are facing as a result of the pandemic.

The following case study illustrates practical insights for organizations with respect to how to navigate the intricacies of workplace harassment complaints and incident reports, where employers often slip up in addressing workplace harassment, and best practices to minimize liability and ensure that all concerns are addressed promptly, effectively, and in accordance with employers’ legal obligations.

As always, the case study below is based on a real-world situation with respect to which we recently provided advice to a client. The details of the scenario and names of the parties have been changed.

The Scenario:

• Stacey’s job requires her to work closely with Kate, Chandra, and Jan, all of whom have been working for the employer longer than she has. Stacey has been employed with the company since November 2019 and feels like she is the odd one out on the team. Kate, Chandra, and Jan frequently socialize outside of work and they never invite Stacey. They support each other at work, while Stacey is left to manage her workload and stress level alone. They have inside jokes that they have told Stacey she “just wouldn’t get”. Given the company’s new pandemic-related work-from-home arrangement, Stacey feels isolated from her colleagues.
• Recently, Stacey complained to the team’s manager, Giorgio, that she was feeling ostracized and bullied by Kate, Chandra, and Jan. However, Stacey asked Giorgio not to say anything about the complaint because she was worried about being excluded further. Since Giorgio did not consider the behaviours Stacey complained of to be particularly serious, he agreed not to say anything.
• Recently, Stacey learned that Kate, Chandra, and Jan have been chatting about her with colleagues in other departments, saying that she is not a team player and that she does not pull her weight.
• At recent a biweekly team meeting, Giorgio brought up some outstanding project work that he was expecting to receive from the team. Kate, who was the lead with respect to the project in question, told Giorgio that most of the work has been done for a few weeks now, but that she was still waiting for Stacey to complete her portion. Stacey was upset and said that she sent Kate her data several weeks before. Kate checked her email, and found that she missed the email from Stacey. However, Kate changed the subject and did not apologize for her oversight.
• Stacey felt that Kate’s comment and her failure to apologize were not oversights, but just another part of Kate, Chandra, and Jan’s exclusionary treatment and efforts to make her look bad. As a result, after the team meeting, Stacey went to the HR manager, Dave, to make a formal harassment complaint against Kate, Chandra, and Jan. Additionally, Stacey complained that Giorgio had condoned her colleagues’ misconduct, as she had told him about what they were doing, and he did nothing.
• Dave assured Stacey that the company would investigate her complaint in accordance with its policies (which had been recently revised).
• The employer contacted us for advice regarding its potential liability with respect to the condonation complaint, and for support with the investigation process, as this was the first harassment complaint the organization had conducted internally.

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Key Considerations and Takeaways:

In this case, the employer avoided liability by having a harassment policy in place that had been rolled out to employees, and which had been reviewed and revised in the last year. Further, as soon as Stacey made a formal complaint to HR, the employer followed its internal policies and commenced an investigation, in accordance with its legal obligation under the Ontario Occupational Health and Safety Act [OHSA].

The OHSA defines Harassment as “a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” and includes workplace sexual harassment as well. A variety of behaviours can meet this definition and constitute harassment.

With respect to the situation Stacey complained about, it is important to note that one of the types of workplace harassment that has been getting increasing attention is bullying. Bullying is defined as “targeted behaviour with the objective to disempower”, and can take many forms, from obvious conduct such as yelling and physical intimidation, to more subtle behaviours such as ignoring someone and/or excluding them from professional situations and social interactions. While Giorgio did not consider the alleged bullying behaviour serious, it could still meet the definition of harassment as set out in the OHSA, and therefore must be investigated.

Under the OHSA, employers are required to investigate complaints and incidents of harassment. In this case, while the employer investigated as soon as a formal complaint was made, Giorgio exposed the employer, and himself, to liability by failing to act on Stacey’s concerns. The obligation to investigate incidents of harassment means that if the employer becomes aware of conduct that could constitute harassment (and if a member of management is aware, the employer is deemed to be aware), the employer must investigate. This is the case even if no complaint is made, and/or if the employee experiencing the unwanted conduct explicitly says that they do not want the concerns investigated. Failing to address complaints and incidents of harassment as appropriate in the circumstances can lead to liability for both the employer and the supervisor personally.

In responding to the complaint, the employer reduced its potential liability by seeking legal advice before completing the investigation, which allowed the employer to receive guidance about its investigation process. Ensuring that an investigation is conducted as appropriate in the circumstances into each complaint and incident of workplace harassment is key to guaranteeing that the employer has met its obligations. Where there may not be internal capacity or capability to investigate (due to lack of training or experience, for example) the employer should consider engaging an external investigator.

The employer in this case had a clear and up to date policy. Having clear, legally compliant policies is key to ensuring that expectations are set regarding appropriate behaviours and the responsibilities of all parties in the workplace.

However, even the best-drafted policies will not achieve this goal and help the employer limit its liability with respect to workplace harassment if they are not clearly communicated to all employees, including managers, through training. This employer could have minimized its potential exposures by training its workforce regarding policy requirements, conduct expectations, and employee responsibilities. For example, Giorgio would have known that as a manager he has the responsibility to act on both complaints and incident reports of harassment even if the complaining employee prefers him not to.

Employers that have not recently done so should turn their minds to ensuring that their workplace harassment policies are reviewed (and revised, if necessary), and that training, or refresher training, has been conducted for employees generally, and for supervisors specifically, to minimize the possibility of liability such as that faced by the employer in this case study.

Stay tuned for next week’s installment in the case study series, which will address considerations for navigating safety-based work refusals.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.