Navigating Workplace Harassment & Violence

Creating and maintaining a safe and respectful workplace is more than good practice, it is a legal requirement under Occupational Health and Safety Act (“OHSA”). With the rise in awareness around harassment, violence, and toxic work environments, employers must not only act swiftly in response to complaints, including conducting thorough investigations, but also ensure they have proper structures in place to prevent workplace harassment or violence from occurring.

This article outlines the legal requirements for workplace harassment and violence policies, how to respond to complaints of workplace harassment and violence, and best practices for conducting investigations and implementing corrective action.

Mandatory Written Policies for Employers

Under Ontario’s OHSA, employers with five or more employees are legally required to develop and maintain written workplace harassment and violence policies. Employers are also legally required to perform an assessment of risks of workplace violence and based on that develop and update policies and programs to prevent workplace violence. The policies must:

• Be reviewed at least annually
• Clearly define workplace harassment and violence, in accordance with the OHSA
• Include measures and procedures for employees to report incidents
• Include measures and procedures to control the risks identified in the assessment of risks of workplace violence
• Include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur
• Set out how complaints or incidents will be investigated and dealt with
• Be posted in a visible location in the workplace (or shared electronically for remote/hybrid teams)

In addition to the above, the policy on Workplace Harassment must:

• Set out how information obtained about an incident or complaint of workplace harassment, will not be disclosed unless necessary for the investigation or to take corrective action;

Employers must also develop a workplace program to implement these policies, including training employees and supervisors on their rights and responsibilities.

Failing to have these policies in place can lead to significant liability, including Ministry of Labour orders and increased risk and liability in civil proceedings.

Responding to a Complaint of Workplace Harassment or Violence

Once a complaint is received, the employer is obligated to act promptly and appropriately. A failure to respond can not only escalate the issue but also expose the organization to legal consequences under both the OHSA and, in some cases, human rights legislation.

Key steps in responding include:

• Acknowledging the complaint in writing and informing the complainant of next steps
• Separating the parties, if necessary, to ensure safety during the investigation
• Assigning a neutral party to handle the complaint or launching a formal investigation, depending on the severity

It is essential that the process remains confidential and impartial, and that all parties are treated with fairness throughout.

Conducting a Workplace Investigation

Employers are required to ensure that an investigation is conducted into all complaints or incidents of workplace harassment or violence, including informal complaints. This is a non-negotiable obligation under the OHSA.

In some cases, especially where senior employees are involved or the issue is particularly sensitive, an internal investigation will not be sufficient. In these cases, it is advisable to retain a third-party workplace investigator. External investigators offer:

• Independence and impartiality
• Professional expertise in handling complex or high-stakes investigations
• Legal defensibility in case the investigation process is later challenged

The investigation must be thorough, well-documented, and compliant with the employer’s internal policies and legislative obligations.

Both the complainant and respondent ought to be asked to put their complaint and response in writing, prior to any interviews being conducted. The respondent must be given the opportunity to respond to the allegations raised against them.

Witnesses who are being interviewed as part of the process must be advised that there will be no reprisal for their participation in the investigation and that all information disclosed will be kept confidential.

Follow up interviews may be necessary, where new information is brought to light.

Investigation Reports & Disciplinary Action

Upon conclusion of the investigation, employers must provide the complainant and respondent with the results of the investigation. While the full investigation report should remain confidential, the information provided to the complainant and respondent must indicate whether the complaint was substantiated, and if so, outline any steps taken as a result.

If harassment or violence is confirmed, employers may take disciplinary action, which could include:

• Written warnings
• Suspension
• Mandatory training
• Termination with or without cause (in severe cases)

Any disciplinary response must be proportionate, evidence-based, and compliant with both the OHSA and applicable employment standards legislation.

Written by: Ronald S. Minken, LL.B. and Tanya Sambi, JD – Minken Employment Lawyers (Est. 1990)