LEXPERT MAGAZINE
|
JANUARY/FEBRUARY 2018 65
| IN-HOUSE ADVISOR: HARASSMENT IN THE WORKPLACE |
employer or supervisor if either of those is
the alleged harasser. It must also include
procedures for competently investigating
complaints, keeping thorough records, and
protecting the identity of victims, unless
required for the purpose of the investiga-
tion or corrective action.
Importantly, at least in Ontario, in-
house counsel must keep in mind that com-
panies must now conduct investigations
not only when complaints are made, but
as Rubin explains, "when the employer just
becomes aware of an incident of workplace
harassment. at moves the dial a little bit.
It means that [even if you don't have an of-
ficial complaint], if you have awareness that
there is a likelihood of workplace harass-
ment, you need to act." Ontario's legisla-
tion also permits the Ministry of Labour
to order an external investigation at a com-
pany's expense if a victim complains that a
company has failed to investigate properly.
At Sherrard Kuzz, Shana French says
that Ontario is Canada's "pathfinder" in
terms of developing proactive sexual ha-
rassment legislation. "If you don't have a
workplace policy on sexual harassment and
provide training on it, and hold your man-
agers accountable for it, there is significant
liability. Not just from a brand perspective,
but from a legal perspective."
Companies that fail to implement ap-
propriate policies and training to protect
employees from sexual harassment face
growing financial and reputational liabili-
ties. Since January 1, 2018, amendments to
Ontario's Workplace Safety and Insurance
Act mean that employers could be required
to pay benefits to employees diagnosed
with work-related chronic mental distress
disorder. "I have dealt with situations
where chronic mental stress arises from
workplace harassment," says Gallagher
Healy. "at's another way there will be
focus on addressing and preventing work-
place stress and harassment. And it could
be a costly one for employers."
e federal government and other prov-
inces are also in the process of introducing
tougher legislation around gender-based
and other forms of harassment. at am-
plifies the attention that in-house counsel
or a company's external advisors must give
to any complaints. And what to do if a
higher-up is actually the problem?
"ought needs to be given to how you
would frame that in a policy," says Brian
Smeenk, in the labour, employment and
human-rights group at Fasken. "When a
complaint happens against an employee in
the lower ranks, typically a human-resources
person can deal with it," says Smeenk.
"But if a complaint were against the
CEO, for example, or one of the top
two or three people in the company,
it is oen advisable to have an outside
third party investigate."
For one thing, "privilege" can be
an unclear matter when in-house
counsel conduct harassment investi-
gations. Privilege can be lost — and
any notes by an in-house lawyer can
be discoverable — should advice
to company executives or a board
during the course of a harassment
investigation stray from legal mat-
ters to business matters. en, of
course, there's the potential for bias.
"When a complaint is against somebody at
the very most senior levels of the company,"
warns Smeenk, "it's much more difficult to
find an internal person who can objectively
investigate that."
But even when the company engages ex-
ternal advisors to act on a harassment com-
plaint, continues Smeenk, "the question is,
who will determine the results of the inves-
tigation? Careful thought needs to be given
to that as well. Sometimes it would be a
committee of the board. Sometimes, if it is
not the CEO, it might be the vice-president
of human resources."
Changing a corporate culture around
harassment issues can be challenging for
external counsel. When dealing with the
prospects of workplace harassment, in-
house advisors must have the gumption
to do more if they want to both improve
working conditions for all and insulate
their companies against the possible brand,
financial and other liabilities arising from
harassment complaints. ey need to press
their boards and senior executives to pay
more than lip service to the policies and
training given everyone else.
"If creating an inclusive respectful work-
place, free from harassment and discrimi-
nation, is important to an organization, the
leaders of the organization should be mod-
elling that behaviour," says Rubin. "If you
as a senior leader don't go to the training —
or you go to the training and play with your
phone for an hour — what type of message
is that communicating? It's communicat-
ing that it's not important."
BRIAN SMEENK
>
FASKEN MARTINEAU DUMOULIN LLP
When a complaint
happens against an employee
in the lower ranks, typically a
human-resources person can
deal with it. But if a complaint
were against the CEO, for
example, or one of the top
two or three people in the
company, it is often advisable
to have an outside third
party investigate.
Anthony Davis is a freelance business
and investigative writer based in Calgary.
