Since allegations related to Hollywood producer Harvey Weinstein first became public, the #metoo movement has provided a catalyst for society to confront its handling of sexual harassment. Just this week, the latest public figure to be embroiled in such allegations is Steve Paikin, a prominent journalist employed by the provincially-funded broadcaster TVOntario (“TVO”).
Paikin’s employer, upon becoming aware of the situation, responded thusly:
TVO does not tolerate sexual harassment. We believe it is important that allegations be fully heard and investigated. Therefore, TVO is appointing an independent third party to investigate Ms. Thomson’s allegation. However, based on the evidence to date, TVO sees no reason to remove Mr. Paikin from his role as Host for The Agenda pending the outcome of the investigation. During the investigation, stories related to this subject matter will be handled by other TVO journalists.
Situations like the one TVO has just found itself in can be landmines for Ontario employers. To that end, this article will attempt to provide general guidance as to what employers should do if faced with similar situations within their workplaces or related to their staff.
When confronted with allegations of sexual harassment, the worst thing an employer can do is to ignore the situation. Time is critical. For one, the further out from the events in question, the harder it becomes to locate relevant information as part of an investigation. Memories become hazy with time; documents go missing or are destroyed.
Employers must also be aware of their statutory obligations pursuant to the Occupational Health and Safety Act (see section 32.0.7) to conduct an investigation when an allegation of harassment is made within the workplace. On the non-legal side, moving quickly to address allegations of sexual harassment can allow an employer to better control the situation, both in how they are regarded internally by staff and by the broader public (should the matter become subject to media attention).
Select an Appropriate Investigator
The selection of an appropriate investigator is a process driven by context. An outside, third-party investigator is not always needed. In some cases, an internal employee of the employer (often someone from human resources or legal departments) may prove competent to investigate.
In all cases however, an employer must ensure the following when selecting an investigator:
- The proposed investigator must have proper training and experience. This is more than a mere check-mark exercise of ensuring proper paper qualifications. For an investigation to be fair, the investigator must understand and apply basic principles of procedural fairness. If not properly versed in these duties, the investigator may do the employer more harm than good.
- The proposed investigator must be non-biased and objective. Employers should be mindful that the mere reasonable apprehension of bias can prove problematic. If, when viewed objectively, there is any reason to think or suggest a proposed investigator may not be neutral, consider selecting someone else. As a helpful way to avoid any suggestion of bias, employers may wish to have the parties to an investigation review the credentials of the proposed investigator beforehand and agree to their use in the matter.
Determine whether an Administrative Suspension is Necessary
Not every situation of alleged harassment, sexual or otherwise, may merit the use of an administrative suspension. Consider TVO’s election not to suspend Paikin. Thomson was not a fellow employee of Paikin at TVO. There was thus little chance that Thomson would have direct interaction with Paikin in their daily working lives. By contract, imagine a situation where an employee alleges sexual harassment by their supervisor. Given the direct contact between the parties at work, some action would need to be taken. At a minimum, the complaint would need to be removed from the supervisor’s reporting authority. A suspension, perhaps for both the complainant and alleged harasser, may also need to be considered to ensure neither party has the ability to unduly influence the evidence of co-workers and potential witnesses.
Where a suspension is warranted, they should be as short as possible and the employee’s pay continued. Suspending an employee without pay, absent contractual authority to do so, may trigger claims of constructive dismissal. Similarly, should an administrative suspension drag on too long (especially absent good reason), delay alone may also give rise to a claim of constructive dismissal.
Managing Communication of the Investigation and Outcomes
When allegations first come to light, and an investigation proves necessary, employers must take great care with respect to any related internal announcements or public communications. In order to preserve the perceived integrity of the investigation, an employer cannot be seen to be taking sides or predicting results. A comparison may be drawn to the somewhat ill-advised comments of Prime Minister Trudeau concerning the administrative suspension of Vice-Admiral Mark Norman. In that matter, the Prime Minister has publicly stated that the Vice-Admiral’s case will “inevitably” lead to “court processes” despite no criminal charges having been formally brought. This in turn has led some in the media and political opposition to allege undue inference and bias.
Once completed, the results of the investigation itself must be communicated to the complaint and alleged harasser. So too must any corrective actions that have been undertaken by the employer.
Allegations of sexual harassment must be taken seriously by employers in all circumstances. It is critical to act in a prompt and neutral manner. Failure to do so can lead to liability and potentially harm the employer’s brand. If you are an employer dealing with an allegation of sexual harassment, see the resources below to gain a better understanding of your obligations.
- For more information on sexual harassment in the workplace, see our related Question and Answer Blog
- Ontario Ministry of Labour’s Code of Practice to Address Workplace Harassment Under Ontario’s Occupational Health and Safety Act
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or firstname.lastname@example.org