05 Jun A thorough workplace investigation is vital: Hawryliw

Failing to address a workplace harassment complaint in a timely fashion can end up being more costly than an investigation, says Barrie employment lawyer Scott Hawryliw.

Hawryliw, founder of SRH Litigation, tells AdvocateDaily.com that employers have a duty to investigate claims when they become aware of them.

“As the employer, you must not only take it seriously but be seen as taking it seriously,” he says. “If the employee is being harassed, and the employer doesn’t take meaningful steps to address the problem, and it continues, the employee can call that constructive dismissal, and the employer could face exposure.”

In a recent Ontario Superior Court of Justice case, evidence showed that an office administrator wrote to her company’s president in April 2018 complaining that another worker was being abusive to her.

The woman said the co-worker constantly harassed her, “yelling and screaming at me … telling me that I am an idiot and that I should be fired,” court was told.

Her boss responded that the company was short-staffed, but he planned to run it by the company’s human resources representative, court documents show.

About a month later she sent another message to her boss saying, “I am writing to you again to let you know that I am at my wit’s end and would like some sort of action to take place. I do not deserve to work in an environment where people are allowed to constantly yell and say inappropriate insults to me. Please look into this matter.”

In June 2018, the woman went to the company’s managing director and reported that a male co-worker had slapped her three times. A police report was filed, and the woman was terminated. She sued and was awarded almost $200,000 in damages.

Hawryliw, who was not involved in the case and comments generally, says it’s important to conduct a prompt and thorough investigation when incidents of bullying or harassment come to light.

“In most cases, the employee raises the allegations themselves, but if the employer becomes aware of it in some other way, they still have to address it. They can’t say ‘we heard about it, but you didn’t tell us, so we’re not going to do anything.’ They have to act,” he says.

Hawryliw says he frequently recommends that a neutral third party conduct the probe, which comes at a cost.

“I’ve spoken with many employers who have said ‘I really don’t want to spend $5-, $10-, or $15,000 on an outside investigation. Not that I believe or disbelieve the allegations, but why should I pay that much to investigate?’” he says.

However, Hawryliw says a comprehensive review by an outside source can be the appropriate route to not only protect the employer but determine the company’s best course of action.

“An in-house probe can be seen as biased so, in the long run, it can be better to spend the money upfront because there’s a risk that it could cost you even more if the employee takes the position that you failed to properly investigate or that you failed to stop the behaviour,” he says.

“Workplace harassment is not a new concept, but these issues are being taken more seriously by employees and the courts, so we are seeing more reports of it. It’s important to know how to properly manage these situations when they arise,” Hawryliw says.