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Harrassment Allegations You Can Not Believe

28 September 2020 by Barteaux Labour & Employment Lawyers

It’s a moment that every Employer dreads: the door closes, the employee’s eyes fill with tears and out comes a story that you – Simply – Can’t – Believe.

It can be a natural response to deny, minimize or smooth-over, but Employers who take the ostrich approach do so at their peril.  These strategies are not a wise option given the potential for serious liability and damage to your business’ reputation.

To ensure compliance with human rights and employment laws, whenever an Employer becomes aware that an employee may be experiencing harassment or discrimination, “meaningful investigation is crucial.” (Slaunwhite v Bay Landing Dining Room and Lounge, 2005 NSHRC 2).

When it does not sound like harassment…

After getting the basic facts from your employee, what they describe may not sound like harassment to you.  Before making decisions based on your gut reaction, always take a step back and focus on finding out more.  For example, in any of the following situations, you may find it challenging to take the complaint seriously, but each merit further investigation. 

  • A distraught employee who is disjointed or disorganized in telling their story.
  • An employee who only tells you about what happened most recently, which does not sound like a big deal to you.
  • An employee who thinks they are being harassed when, it seems more likely the problem is just two people who do not get along. 
  • An employee who complains of racist comments in the workplace, but the comments seem benign, or without negative intent. 
  • The complaint is about someone you know and respect, and it strikes you as unlikely or completely unbelievable.
  • The employee reporting harassment is known to be “sensitive” and is someone who often overreacts and complains about things at work.
  • The complaint comes after a settlement with another employee, and you suspect the complainant may be trying to “hop on the gravy train.”  

What is a Meaningful Investigation?

To make sure your response is meaningful and adequate, follow these tips:

  • Treat the complaint seriously. 
  • Ensure your response is prompt and sensitive.
  • Have a full and clear picture of the problem before implementing solutions. 
  • Follow your own policies.
  • Speak to both parties and any witnesses with key information. 
  • Communicate the outcome of the investigation to the parties.
  • Provide a reasonable resolution in the circumstances. A reasonable resolution is ensuring the complainant’s work environment is healthy and safe.
  • If not prevented from doing so for confidentiality, communicate the action steps you have taken to resolve the issue and prevent reoccurrence. 
  • Check in with your employees after the fact to ensure they feel the issue has been resolved. 

When the investigation concludes there was no harassment…

Personality conflicts are not harassment or discrimination, but that does not mean you should do nothing.  Personality conflicts can drain significant time, energy, and resources from the workplace. Workplace culture and productivity suffer when work time is wasted on inter-office buzz and speculation, bouts of crying in the bathroom, or outright conflict in the workplace. Assess whether you should take some action to resolve the complaint regardless.  If your employees are not getting along, other dispute resolution methods like mediation may help.

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Are you dealing with an issue in your workplace or in need of management training on how to deal with workplace conflicts? Contact Jennifer Weston for training, mediation, and investigation assistance.

Jennifer is an associate lawyer with Barteaux Lawyers. In addition to conducting independent external investigations and mediations throughout the Atlantic provinces, her practice includes advising on day-to-day workplace issues and representing employers before Nova Scotia courts and tribunals in all manner of disputes.

Posted by Barteaux Labour & Employment Lawyers

Barteaux Labour and Employment Lawyers is Atlantic Canada’s only homegrown management-side employment and labour law boutique and is recognized by Canadian Lawyer as one of the Top 10 Labour and Employment Boutiques of 2020-2021. We help employers solve workplace issues so they can get on with business.