Duty to Investigate – “A Ticking Time Bomb”

John Curtis, .

Recently, I was retained to conduct two workplace harassment investigations related to employee complaints against senior management. Both investigations were initiated by complaints that were made to the Ministry of Labour well after the employee left the employer.

This is a double-edged sword. On the one hand, it should serve as wake-up call to any employers out there who may have disgruntled ex-employees. On the other, it may give heart to those who feel they were mistreated but believe there is nothing that can be done to prevent others from experiencing similar harassment.

Without disclosing any confidential information, the basic details of these two cases are instructive.

Scenario 1:

A senior management employee accused the CEO of prolonged harassment relating to allegations of unwarranted performance criticism, performance related humiliation in front of co-workers, and removal of job responsibilities amounting to a demotion. A formal written complaint was made. 

There was a mediation that apparently resolved all matters between the parties. The complainant left the employer for another job about three months after the mediation. Four weeks after voluntarily leaving for another job, the employee filed a complaint with Ontario’s Ministry of Labour. The Ministry found that the original complaint had never been investigated, contrary to the Occupational Health and Safety Act (OSHA) which requires the employer to investigate all complaints. It also found that there were fresh complaints which must be investigated.

The mistake that allowed the Ministry to order that the original complaints be investigated was that the mediation had no minutes of settlement and no written withdrawal of the complaint.   

The fresh complaints were part of what the employee framed as a written “exit interview” that the employer refused to conduct. Faced with no opportunity for a meaningful exit interview, the employee simply wrote down all her grievances and emailed it to the employer who did not respond. These fresh complaints were not barred by any sort of payment accompanied by a Full and Final Release Agreement that are usually associated with the termination of a disgruntled employee. Such a Release might have included a formal withdrawal of any current or potential complaints of harassment. Whether employees and employers can contract out of OSHA requirements is another question.

In the end, the complaints were found to be without merit. I also found that withdrawal of the original complaint was implied by the successful resolution of that complaint by mediation.

The problem is that the employer was forced to pay for an expensive investigation and the associated disruption and emotional upheaval amongst affected staff members that these investigations invariably bring to a workplace regardless of how thoughtfully, gently and quickly the investigator does their work.

Lessons Learned:

If mediation is part of your harassment policy process for resolving complaints (and I believe it should be), make sure that it covers the requirement for withdrawal of the complaint if the mediation is successful.  

Typically this will be included in written Minutes of Settlement following the mediation. However, it would not hurt to have guidance on this matter in the actual policy wording related to mediation.

When difficult employees leave on their own accord, keep in mind the need for an amicable exit process. It might not always feel right to throw a retirement party, but careful thought needs to be given to how best to set a positive tone surrounding the employee’s departure. There are companies that offer this type of service and it can be worth its weight in gold.

Scenario 2:

This involved a restaurant employee who had been terminated and had been arguing with the employer about how much pay in lieu of notice to which she was entitled for several months after termination. About $1,500 was in dispute on that score. About a year after termination and four months after the last correspondence about pay in lieu of notice, the employee brought her complaint to the Ministry of Labour which promptly ordered an investigation.

The complaints of harassment and sexual harassment were serious. However, there was concern that they were being done simply as leverage in the termination pay dispute. 

While that may have been true, the complaints were found to have merit. In this case, the complaints were against a key managing partner in the business. Facing the stark conclusions of harassment and sexual harassment, the business relationship amongst the ownership group was severed and the viability of the business was seriously jeopardized – it may not recover.

There was ample evidence that many bystander employees and some business partners knew about the abuse that was going on and, rather than speaking out, they hoped it would stop on its own.

Lessons Learned:

Treat your employees as the most precious resource in your business. So-called bystanders have an important role to play in dealing with harassment and sexual harassment. Don’t be cheap when terminating employees.

The path to a “kinder and gentler” world is often not so kind and gentle.  A workplace harassment investigation is best understood as a form of adversarial process that can be a source of great stress and consternation for all involved. 

Because of the requirements on employers under Ontario’s Occupational Health and Safety Act, an investigation may be unavoidable. Make sure your policy is up to date and pay careful attention to the conflict competency of your workplace culture. A conflict-incompetent culture is not just unpleasant – it is a significant “cost centre”.

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