Employers have duty to act before workplace bullying starts: Low

In the final instalment of a two-part series on bullying at work, Toronto employment lawyer Ellen Low discusses employer obligations and the results of a recent study.

Employers have an obligation to be proactive when it comes to harassment and violence in the workplace, says Toronto employment lawyer Ellen Low.

“The employer’s duty is to act before they receive a complaint,” says Low, principal of Ellen Low Employment Law. “There are responsibilities laid out in Ontario’s Occupational Health and Safety Act (OHSA) legislation and in human rights legislation.”

A recent poll found one in two Canadians has experienced bullying in the workplace, and that older workers are more likely to be victimized than their younger colleagues.

Of those between the ages of 55-64, 61 per cent reported that either they and/or a co-worker had been bullied at work, according to the poll. Compared to the younger population, 57 per cent of those between the ages of 25-34 reported that either they and/or a co-worker had experienced workplace bullying.

The OHSA states that bullying at work can include verbally threatening to attack a person, sending threatening notes or emails, hitting, trying to hit or throwing an object at a worker, and sexual violence against someone.

Low tells AdvocateDaily.com that she finds employers are taking their obligation to investigate incidents of workplace violence or harassment seriously.

“But then it often becomes a question of was the investigation unbiased and how was it conducted,” she says. “From an employer perspective, that can be scary because liability can flow if a complaint has been mishandled.”

When she’s hired to represent an employer in a compliant, Low says her advice is to “take it seriously and document, document, document.”

“From an employer perspective, I prefer to get involved as soon as possible because you want to start collecting evidence,” she says. “Gathering the documentation is critical, and you’re hoping your client has also been proactive with respect to training and implementing policies that would help guide the process and provide some clarity to everybody in the event that a complaint is received.”

When a company has not taken such steps or is missing a policy required pursuant to the legislation, it “puts you on your back foot,” Low says.

She says she will review workplace practices and make any necessary recommendations to get the employer “up to speed with respect to the necessary policies.”

Communication is key in investigations involving bullying in the workplace, Low says.

“I find what often gets overlooked is having a meaningful discussion with the complainants about what resolution would look like for them,” she says. “That is an important conversation to have because you may go into the investigation assuming that the complainant wants someone terminated, but that might not actually be their desired outcome. It’s important to ask the complainant what they’re looking for out of the process.”

Low says a “really high-level overview” is vital when a complaint is filed.

“You need to do an investigation that includes speaking to both parties,” she says. “Not only do you want to speak with both sides, but in my view, you want to be sure that you’re explaining the procedure the best you can in terms of what each party can expect out of the investigation.”

Low says the investigation can go off the rails “if there is a failure or a lack of upward escalation with respect to the complaint because some people may not feel comfortable directly addressing or speaking with the person who is causing the bullying or harassment.”

She says, “if the employee feels as though the investigation has not been completed to his or her satisfaction,” they may look outside the workplace to resolve that matter.

When representing an employer, Low says one of her priorities is to ensure the preservation of any evidence.

“You always want to talk to your IT department to make sure that you are keeping phone records, surveillance videos, emails or really anything that goes through your server or your devices as those could be evidence,” she says. “Sometimes, by the time the complaint is received, it might be too late, those records may have already been deleted.”

Low says she emphasizes that employers need to be cognizant of their responsibilities and take action immediately when a problem does arise.

“You can’t simply ignore harassment, and whether someone has made a formal complaint is beside the point.”

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