Des leçons d’un scandale canadien – 5 conseils pour gérer le harcèlement au travail
novembre 20, 2014 Par: Janice B. Payne Read Time: 5 minutes
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The scandal surrounding CBC host Jian Ghomeshi has brought the issue of workplace sexual harassment back to the spotlight in Canada. The ensuing discussion has provided some valuable reminders to the importance of handling harassment.

Despite the legal protections that have been put in place to protect employees from workplace harassment, REMAIN. This is particularly the case where a power differential exists between a harasser and the target (s) of the harassment, or where to employ an economic incentive to ignore allegations about an influential employee. Employees in entry level positions are particularly vulnerable to harassment, where “career suicide” is likely to create a reluctance to come forward and report abuse.

Establishing a Culture of Respect

Before any investigation takes place, the employer must take the groundwork to ensure that the information is removed. This is one of the most important aspects of senior leadership team practice, and should include proactive training on respect, discrimination, harassment and workplace violence at all levels. of the organization. It should be very clear to employees that it will not be tolerated. It is also essential for employers to have clear policies and procedures in place to deal with complaints of workplace harassment. These are legislatively required in Canada, and must be followed consistently by the employer. In unionized environments they are likely to take over the form of grievance procedures,

Five Tips for Employers

In order to overcome systemic barriers and encourage reporting, As with so many things in the workplace, effective communication is the key to success. Here are five tips for employers to keep in mind when conducting workplace harassment investigations:

  1. Take Reports Seriously and Respond Promptly

  2. Choose an Appropriate Investigator

  3. Understand Limits of Confidentiality and Privilege

  4. Ensure Investigations are Reasonable and Procedurally Fair

  5. Document Investigations and Take Action

We’ve provided more information about each of the five tips below.

1. Take Reports Seriously and Respond Promptly

In order for an investigation process to be effective, it is important that employers treat every report as legitimate, and take some action in relation to every complaint. This demonstrates the employer’s commitment to both its workplace policies and its processes of investigation. Reports should be received by a Human Resources professional who has the communication skills and training necessary to create a safe and comfortable reporting environment for employees.

The appropriateness of an employer’s response to a claim is based on the position of the employer and the employer. In some cases, it is possible to separate the parts by placing them on different shifts or teams (without prejudicing the complainant) during an investigation. In others, it may be better to remove the respondent from the work environment and place them on leave with pay.

It is important that employers respond promptly to complaints about the risk of further injury, reduce the impact and strain of the investigation on the parties involved.

2. Choose an Appropriate Investigator

Once again, the next step for an employer is to determine the appropriate investigator. Investigators can be internal or external, depending on the nature of the complaint. If the investigation is likely to involve a high profile individual within the organization, media attention, or litigation, it is best to engage a competent external investigator. Regardless of where he or she comes from, investigators should always be objective, impartial and properly trained in investigative techniques. Investigators should also have a good understanding of the use of policies and procedures.

3. Understand Limits of Confidentiality and Privilege

While it is important to preserve confidentiality as it is possible for all parties involved, it is important that the complaint is not possible. In most cases, the information will be revealed to other members of the employer’s leadership and HR team. The investigator will also be required to speak with any witnesses, and the respondent is provided with sufficient particulars of the complaint that he or she is able to respond. In addition, there are certain situations in which the use of information may be legally obtained. In order to maintain the integrity of the investigation,

An employment can be solicitor-client privilege over an investigator’s report. However, this protection is not limited to a particular debate, especially where in-house counsel is involved, as well as within the context of a business. In order to have the best chance of doing so, the employer’s counsel should retain the investigator, or the investigator retained. It must be established in the field of communications with the investigator, and the purpose of the investigation is to provide a basis for the investigation. In addition, the report should be provided directly to the board, or to use it, and should not be distributed.

4. Ensure Investigations are Reasonable and Procedurally Fair

Because of the potential for serious consequences for all parties involved, it is important to ensure that the investigation is reasonable and procedurally fair. This will make it more likely that the parties will accept the result. Both the complainant and respondent should be informed of the investigation process and likely timelines. The respondent also claims that the allegations have been made that the action would be adversely affected. Any potential witnesses that are brought to the attention of the investigator should be interviewed and reviewed. No decision should be made in an investigation without first taking the time to fully consider and analyze all of the evidence available.

5. Document Investigations and Take Action

An investigation should be fully documented, and all the evidence used in support of it, including electronic records should be secured in a central location. It is best to obtain a complaint in writing, usually in a complaint form created for this purpose. The terms and scope of the investigator’s mandate should be established in writing prior to the investigation. Detailed witness statements should be carefully selected by the investigator, which should be reviewed and signed by the witness if possible. The investigation is complete, the investigator should produce a summary report, a summary of the allegations, the investigation process, the evidence obtained and reviewed, the witnesses interviewed, the analysis of any inconsistencies, and the findings supported by evidence. The investigator and employer should be in the background. Finally, a written record of any action taken following the investigation should be retained. 

Following the conclusion of an investigation, the employer will need to determine what action to take, if any, based on the findings in the report. In severe cases, the investigation may reveal behavior of a criminal nature, and the use of the report should be made to the police. In the event that a complaint is unsubstantiated, no resumption should be made against the complaint that the complaint is fraudulent “made in bad faith or malicious.” Both the complainant and respondent should be informed of the outcome of the investigation. in writing, and there may also be a legal requirement to report the outcome of the investigation to a government regulatory body.

Benefits to Employers in Well Handling Investigations

The recent Court of Appeal for Ontario . Wal-Mart Canada Corp. In the case of a person who has not been victimized by the employer, the employee is liable to be compensated for . The employer in this case has failed to follow its investigation, or to take sufficient action in response to its complaints, in the face of abusive behavior. The Court upholds the award of $ 200,000 in aggravated damages, and $ 100,000 in punitive damages against the employer, in addition to damages awarded against the manager.

The benefits to employers in the process of minimizing the risk of litigation, and protecting the employer’s reputation. There is also an incentive for employers to maintain a safe and healthy environment, in terms of increased productivity and morality, and reduced absenteeism, sick leave and turnover, all of which can be costly.

Janice Payne was interviewed by Steve Mertl of the Daily Brew for his article, Ghomeshi Scandal: How Workplace Culture and Power Enables Harassment , which was published on November 6, 2014.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2019 Nelligan O’Brien Payne LLP.

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