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Responding to a Bullying & Harassment Complaint

June 8, 2021

As an employer, you have a legal obligation to provide a safe and healthy place to work.

This obligation extends to ensuring that the mental health of your employees is protected, which means that you must take all reasonable steps to prevent bullying & harassment from occurring in your workplace.

Topics that will be explored in this refresher series include:

·         Part I: What is Bullying and Harassment?

·         Part II: Developing a Bullying & Harassment Policy

·         Part III: Responding to a Bullying & Harassment Complaint

·         Part IV: Employer Best Practices to Prevent Bullying & Harassment

Part III: Responding to a Bullying & Harassment Complaint

At some point, most employers receive a bullying and harassment complaint from an employee. It is important to respond promptly, fairly, and transparently to that complaint.  

Immediate Next Steps: Safety First

When you receive a complaint, ask this question first: is there an immediate safety concern?

This question should be answered on the assumption (not conclusion) that the complaint is legitimate, and the behaviour complained of has occurred. Generally, immediate safety concerns will exist in complaints relating to serious or repeat sexual harassment, violence or the threat of violence, and situations where serious mental health concerns are being reported.

If there is a safety concern, the alleged harasser should be immediately notified, and put on leave with pay. The communication should be made in writing, should confirm that the action is not disciplinary, that the leave is pending the results of an investigation, and that further information will be provided as soon as possible to the employee.

You should also consider whether the behaviour needs to be reported to the police, and if there are any other statutory or internal reporting obligations that apply (including in relation to insurance). A serious complaint will also generally warrant a call to your lawyer, and any other relevant advisors or stakeholders, as early as practicable in the process.

Finally, while every complaint must be investigated, serious complaints will require both a faster and more thorough response than less immediate or severe allegations.  

Your Policy is Your Roadmap

As set out in Part II, employers are required to have a detailed written procedure for responding to harassment and bullying complaints.

Your procedure should have enough flexibility to account for the wide variety of complaints you may receive, while still providing  guidance as to how complaints will be investigated and addressed.

It is important to follow the procedures you have developed. In addition to being more efficient, this is important because the policy not only serves as your roadmap, it also sets your employees expectations on how issues will be addressed.

Deviating from your policy without good reason can result in unfairness and inconsistent treatment, and both taint investigation results and result in an employee who is unsatisfied with the process.

Who Should Conduct the Investigation?

This question is answered based on a number of factors, including the seriousness of the allegations, the size and resources of the company, and who in the organization the allegations relate to.

In-house investigations are often more cost-effective, in the short term, and can be appropriate where an organization has an individual with the skills and training to conduct the investigation appropriately, and where the behaviour is on the less serious side of the spectrum.

An external investigator may cost more, but is well worth the money, particularly where the allegations are serious, or relate to a senior employee. In a case with serious allegations, or allegations against a senior employee or someone in your HR department, it is best practice to retain a third party.

This choice is also suitable if the organization does not have someone with the appropriate level of skills and training to conduct an internal investigation, as it ensures the process is done to a high standard and in accordance with best practices.

Finally, retaining a third party investigator confirms to your employees that you are taking the complaint seriously, and ensures a degree of impartiality and objectivity in the process.  

Communication is Key

Remember, there are at least three groups an employer is responsible for when responding to a complaint, and the interests of all three need to be taken into account:

(1)    The complainant – the concerns of a complainant should be treated as serious and legitimate, until proven otherwise. Consider if there are supports in place that the complainant should be encouraged to access, particularly where there are mental health concerns.  

(2)    The alleged bully/harasser – allegations are only true once proven through a properly conducted investigation, and the employee accused of bullying or harassment is entitled to a fair process. Operating on that principle, an employee should not be put on an unpaid leave or terminated prior to an investigation being completed.  

(3)    Your other employees – although confidentiality must always be protected, consider if a complaint or investigation will impact other employees. For example, if employees are called as witnesses, consider if any support for those employees is required.

Finally, communication throughout the entirety of the complaint and investigative process is essential.

There is generally a lot of anxiety and uncertainty on both sides of a complaint, and in your organization, much of which can be mitigated by transparent and honest communication throughout. Communications should be realistic in terms of timeline, and protect confidentiality as appropriate.

Many employees will accept the results of an investigation – even if not in their favour – if they feel that the process has been fair, prompt, and impartial, and that their concerns were taken seriously.

We are here to help you navigate the bullying and harassment complaint process – contact us!