The Supreme Court of Canada clearly ruled: An employer who responds quickly and effectively to (a harassment) complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps”(Robichaudv. The Queen).
And the Canadian Human Rights Act specifically states harassment shall not be considered to be an act.
|The Canadian Human Rights Commission provides the following remedies for victims of harassment, depending on the severity and what he or she lost because of it:
committed by an employer if it is established that the employer did not consent to the commission of the act and exercised all due diligence to prevent the act from being committed and, subsequently, to mitigate or avoid its consequences.”
In other words, if an employee complains about harassment, take action right away by getting statements, conducting an investigation and imposing appropriate remedies. By doing so, you will be able to demonstrate due diligence.
It’s critical to be impartial and sensitive to both the employee making the complaint and the accused harasser. That gives you a better chance of resolving the situation and avoiding court action. It’s a good idea to get professional help with your company’s investigative procedures, but here are some common steps that can help lead to a successful and effective resolution:
1.Name an investigator.
The person should be properly trained, objective and familiar with federal and provincial human rights law. You should provide sufficient resources for the investigation and relieve the investigator of any other duties that may impede the process. Consider whether the investigator should have a particular background given the nature of the charges.
2. Meet with the victim.
Be neutral and supportive. Make the employee comfortable. Explain the role of the investigator, the steps of the process and how long it is likely to take. Assure the person everything is confidential and that there will be no retaliation. Do not discuss disciplinary consequences for the accused. Identify any evidence and potential witnesses.
3. Write an incident report.
Following the initial meeting, the investigator should compile a report stating the charges and review the report with the victim to ensure accuracy. The report defines the focus of the investigation.
4. Plan the strategy.
Using the incident report, determine questions to be asked to support or refute the charges, who will be interviewed, and what evidence is required.
5. Meet with the accused.
Again, be fair and impartial or run the risk of tainting the investigation. The accused must be told who is making the charge and be given the opportunity to answer each allegation. Unless a collective bargaining agreement requires, the accused isn’t entitled to legal representation.
6. Interview witnesses.
This should be done as soon as possible after the alleged incident and all answers should be written and confirmed with the witness. Avoid telephone interviews. Consider factors such as whether witnesses directly saw or heard the incident, have a motive for lying, and whether witness accounts are corroborated.
7. Write a final report.
This provides the basis for resolution and shows your company pursued due diligence to resolve the situation. The report should be given only to the person who will make the ultimate decision in the case. It should state whether there is sufficient evidence of harassment, list possible resolutions, and recommend a course of action.
(For more information, click here to read our previous article, “Keeping the Workplace Free of Harassment.”)