You are prepping for your long weekend on a Friday afternoon, with time to finish wrapping up a few emails.
Then, what seems like out of nowhere, you get a confidential email with a list of complaints from an employee about their coworker.
You are at a bit of a loss about what to do. You have tried meeting with them to mediate a solution, provided one-to-one coaching to each, and even gone so far as to make sure their work does not overlap.
Yet this happens.
At the end of the email, the employee says they are going to file a formal complaint outside of work and are considering taking a mental health leave because they are so stressed out. They say nothing has changed. They like their job, but they don't know what else to do.
So what do you do now?
When a complaint lands, the first instinct is to ask: Did this really happen? What should I do with this?
Instead, start with a different question: if the allegations are true, what would that mean for the organization? It comes down to three questions:
- If the allegations are found to be true, do they breach the organization's policies or regulatory frameworks?
- If the allegations are found to be true, will they pose a potential legal issue or create reputational damage?
- If the complaint is not investigated or otherwise addressed, could it harm employees beyond the ones who complained?
The answer determines whether the organization needs a full investigation, how quickly it must move, and what it risks if it does nothing.
Rachel Maxcy is an independent workplace investigator based in Vancouver, British Columbia. We conduct investigations for organizations in British Columbia, Alberta and Ontario, and for remote workplaces.
Summary
- Policy and regulation. If the allegations are found to be true, bullying, harassment or discrimination will usually breach both the organization's own policies and the regulatory frameworks it operates under.
- Legal and reputational risk. If the allegations are found to be true and the organization did not respond properly, it can face human rights complaints, workers' compensation claims, regulatory orders, court claims, and reputational damage.
- Harm to others. If the complaint is not addressed, the conduct rarely stops with the person who complained. Other employees see what is tolerated, and some of them are affected by it directly.
Would the conduct breach the organization's policies or the regulatory frameworks?
Some, but not all, organizations have a respectful workplace or bullying and harassment policy, and many have a separate human rights or anti-discrimination policy.
Those policies sit on top of legal obligations that differ by province.
- Bullying and harassment. In British Columbia, employers must meet WorkSafeBC's bullying and harassment policies. In Alberta, the Occupational Health and Safety Act and Code set out workplace harassment and violence requirements. In Ontario, the Occupational Health and Safety Act requires employers to investigate incidents and complaints of workplace harassment (section 32.0.7).
- Discrimination. Conduct connected to a protected ground, such as race, sex, religion or disability, falls under the BC Human Rights Code, the Alberta Human Rights Act or the Ontario Human Rights Code.
- Disability and accommodation. A complaint that a manager ignored or mishandled a request for accommodation can engage the duty to accommodate under the same human rights legislation. See disability and mental health investigations.
Not every complaint reaches this point. Some describe conduct that is unwelcome or poorly handled but would not breach a policy or the law even if it happened exactly as described. That is the threshold question, and it is worth answering before anything else.
What legal and reputational risks follow?
When allegations are found to be true, the risk to the organization depends less on the conduct itself and more on what the organization did once it knew. An employee who believes the organization did not respond has several options.
- Human rights complaints. An employee can file a complaint with the human rights tribunal or commission in their province.
- Workers' compensation claims. In British Columbia, bullying or harassment can qualify as a significant work stressor for a mental disorder claim if the behaviour is threatening or abusive (Workers' Advisers Office factsheet).
- Regulator orders. In Ontario, a ministry inspector may order an employer to have a harassment investigation carried out by an impartial person, and the employer pays for it (Ontario: investigations by an impartial person).
- Claims in court. In Colistro v. Tbaytel (2019 ONCA 197), the employer rehired an executive who had previously been dismissed, in part over sexual harassment complaints that included the employee's own. The court found she had been constructively dismissed and awarded $100,000 in damages for the employer's bad faith in how it treated her. The Ontario Court of Appeal upheld the decision.
In Ontario, the investigation still has to be completed even if the complainant or the respondent leaves the organization.
Reputational damage is harder to measure but follows the same pattern. Employees talk to each other, to former colleagues and to people outside the organization. A complaint that was handled fairly and promptly is rarely the story. A complaint that was ignored often is.
Can the conduct harm employees beyond the ones who complained?
Yes. A complaint usually reaches the organization from one or two people, but the conduct behind it is often seen or felt by others who never come forward.
Witnesses may be afraid of becoming the next target. Coworkers may start to treat the behaviour as normal because nothing changed when it was reported. People who can leave sometimes do.
Arbitrators, for example, recognize this. In a 2007 Nova Scotia arbitration, only some employees of a hospital tissue bank had complained about their manager, but the arbitrator found that the manager's behaviour had created a poisoned work environment for the group and awarded damages to the employees as a whole (HR Reporter). The arbitrator ordered $10,000 in damages to the group, about $400 for each of the tissue bank's 25 employees.
The person responding to the complaint is affected too. An unresolved allegation hangs over them as well, whether or not it is later found to be true.
Where does a Preliminary Review and Assessment fit?
These three questions are threshold questions. Answering them does not decide what happened. It decides what the organization should do next.
Our Preliminary Review and Assessment works through these questions using the complaint and the documents provided, and ends with a written report and recommendations. If the answer points to a full investigation, the investigation process establishes findings of fact, where every party has the chance to be heard. See Fees.
Next step
To talk through a complaint and whether it meets the threshold for an investigation, book a confidential call.
Written by Rachel Maxcy, BHRLR. Rachel is an independent workplace investigator based in Vancouver, British Columbia, with more than twenty years of work in disability, accommodation and inclusion, including over fifteen years in human resources and labour relations. She holds the Workplace Investigation Certificate from Rubin Thomlinson. See Credentials and training.
This article is general information, not legal advice. Organizations should speak with legal counsel about their own circumstances.