Wendy Giuffre of Wendy Ellen Inc. talks about new legislation, how to investigate complaints and what constitutes harassment

Wendy Giuffre is president and principal consultant at Wendy Ellen Inc.

Wendy Giuffre
Wendy Giuffre

What can you tell me about workplace harassment and its prevalence today? Is it a growing issue?

Giuffre: The actual act of workplace harassment may not be a growing issue, yet the number of reported cases is increasing.

Bullying harassment cases have been on the rise for a number of years as school yard bullying became an important issue and movement. School yard bullies can grow up to be workplace bullies.

However, reported sexual harassment cases have become far more prevalent over the past couple of years. The obvious reason for this would be the #MeToo movement and the #Time’sUp movement. The number of celebrity cases has opened up the door for everyday women and men to feel safe to bring forward cases of harassment of all kinds.

Workplace harassment has taken place for many years in many forms but was typically accepted by the complainant or the complainant simply quit. As a young professional woman, I recall many times where inappropriate words and sometimes actions occurred in the course of working with men. These were laughed off as a joke and we carried on.

With the new visibility of harassment cases, successful litigation and the introduction of key legislation, this type of reaction has now changed.

Who should investigate workplace harassment complaints?

Giuffre: Workplace harassment investigations need to be factual, unbiased, using a prescribed format and conducted in a non-conflict of interest environment. Many investigations are conducted by in-house employees, whether it be managers, human resources personnel or others. It’s hard to be unbiased when an inside investigator will most likely know or know of the individuals involved, and have a loyalty to the company they work for, and for which they’re also conducting the investigation.

It’s recommended that an external unbiased third party conduct the investigation. HR consulting companies and lawyers are the usual go-to providers. Investigation-certified HR consultants are a great source as they are cost-effective and tend to have a better understanding of the emotions surrounding these cases and have a non-threatening demeanour during the investigation. Lawyers are very thorough and understand the law, however, they’re typically more costly and can be seen as intimidating when taking the questioning approach typically used in litigation practices.

What’s changed about how investigations are now conducted?

Giuffre: Under new legislation, specifically the Occupational Health and Safety legislation (June 1, 2018), requirements were introduced for employers to develop violence and harassment prevention plans that include policies and procedures around reporting, investigating and disclosure of results.

Where investigations or inquiries used to be handled internally without prescribed procedures, employers now need to comply with OHS requirements and the investigation may be subject to a review by an OHS officer even if the company conducted a formal investigation.

What constitutes workplace harassment?

Giuffre: According to the revised Occupational Health and Safety Act, workplace harassment is defined as: A single or repeated incident of objectionable or unwelcome conduct, comment, bullying or action intended to intimidate, offend, degrade or humiliate a particular person or group. It’s a serious issue and creates an unhealthy work environment resulting in psychological harm to individuals.

Bill 30 of WCB Alberta also added psychological trauma to their suite of work-related covered injuries and accommodation obligations. Psychological trauma does include clear and substantiated workplace harassing behaviours where a worker has been subjected to threats of harm, violations of privacy, public shaming or threats to employment status.

Workplace harassment doesn’t include (if within reason, fairness and in good faith):

  • Reasonable actions taken by an employer or supervisor while managing and directing individuals.
  • Reasonable actions considered to be part of a manager’s or supervisor’s work functions include changing work assignments, scheduling, assessing and evaluating work performance, inspecting workplaces, implementing health and safety measures, and taking disciplinary action such as dismissing, suspending, demoting, or reprimanding with just cause.
  • Differences of opinion or minor disagreements between co-individuals (but can turn into harassment if no steps are taken to resolve the conflict).
  • Difficult conditions of employment such as professional practice limitations, organizational changes, or financial restrictions.
  • Work-related stress on its own.

The provincial government has included this in labour legislation. How important is that in addressing the issue?

Giuffre: Hugely important, not only to be an ethical place of work but to comply with the law. As per above, OHS has the authority to assign its own officers to investigate or audit an investigation. Investigations that are not conducted properly can also be expensive for an organization if the complainant or accused turn to litigation if they feel the situation was not handled with proper due course or the remedies were inconsistent with the findings or deemed unfair.

The other piece that needs to be addressed is that any form of retaliation to a complainant, whether or not the complaint was substantiated, is not permitted.

The other key thing to these investigations is to maintain confidentiality to the best of the organization’s ability. This is often difficult because of the ‘gossip mill’ but needs to be managed in a timely manner and with serious consequences if a breach occurs.

There are also accommodation concerns during and after an investigation. The process is stressful for not only the complainant but for the accused. There is a real risk of the organization losing the accused during and after an investigation.

Some examples of accommodation include:

  • Recommend the individuals involved consult a health professional (of the individual’s choice).
  • Support this financially through a benefit program or special allowances.
  • If you have an employee and family assistance program (EFAP), direct the individuals to that resource.
  • Offer any immediate remedies, such as time off with pay, access to short term disability programs, physically moving the individuals to a ‘safe’ or alternate location or telecommuting opportunities.

– Mario Toneguzzi


workplace harassment

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.

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