Ontario Municipal Human Resources Association

When workplace conflict arises, attention typically centres on the investigation process and/or potential discipline. For instance, focus tends to surround issues such as, who complained, who was involved, what was found, the length of the investigation and whether discipline followed.

While HR professionals have a legal obligation to address workplace conflict through various mechanisms, including conducting a workplace investigations, the period after a complaint is addressed often determines whether an organization genuinely reduces its legal risk.

This stage is best described as workplace recovery: the deliberate work of re-integrating employees, rebuilding trust within a team, managing return-to-work, and monitoring the environment so that the original conflict and/or risk factors do not resurface or escalate. While workplace recovery is not a defined legal term, recent Ontario caselaw illustrates that workplace recovery is considered part of an employer’s substantive obligation to address workplace conflict. For HR professionals, particularly those in the municipal sector where teams are close-knit, publicly accountable, and often unionized, this stage deserves the same rigour as the investigation itself.

Workplace Recovery Is a Substantive Obligation, Not an Afterthought

An employer’s obligations does not end when once an investigation is complete, findings are rendered and/or the offender, who may been terminated for the conduct, has left the workplace. In Stride v. Syra Group et al, the Ontario Superior Court ordered an employer to pay $125,000 in Human Rights Code damages and $50,000 in moral damages for failing to take reasonable steps after finding out that one of their employees was harassed at work by two of her colleagues on multiple occasions. The Court found that, by failing to update its policies, adjust working conditions, or thoughtfully manage the employee’s return from a mental-health leave before terminating her, the employer was negligent, reckless and in breach of the Human Rights Code, the Employment Standards Act and the Occupational Health and Safety Act. The costly failure was due to the absence of any meaningful recovery on the part of the employer. Stride v. Syra Group et al is a reminder that how an organization supports an affected employee through the aftermath of workplace conflict is an important consideration in assessing an employer’s overall response to workplace conflict.

Mishandling the Aftermath Can Create Liability

Mishandling workplace recovery can also increase the risk of reprisal. In Braganza v. Randstad Canada, the Ontario Labour Relations Board ordered an employer to pay more than $195,000 in damages after an employee was terminated due to restructuring. The employee was terminated approximately 9 months after raising a workplace complaint and requesting a transfer due to reprisal concerns (which was not granted). Section 50 of the Occupational Health and Safety Act prohibits employers from disciplining, penalizing, or otherwise reprising against workers for exercising their rights, including raising harassment complaints. In this case, the Ontario Labour Relations Board held that there was a nexus between the employee’s decision to raise a complaint pursuant to section 50 and the employer’s subsequent decision to terminate her months later. When it comes to workplace recovery, context and timing matters – adverse action taken soon after a complaint is raised may invite an inference of a nexus between raising a workplace complaint and reprisal, even where the employer’s reasons for termination are solely operational.

Process Fairness in Investigations Sets the Tone for Recovery

Finally, the tone set during the investigation process carries into recovery. In Wilsher v. Olympic Wholesale, the Ontario Superior Court held that the employer conducted an investigation akin to an “interrogation” that constituted bad faith conduct on the part of the employer. As such, the Court ordered the employer to pay 14 months of damages on top of a lengthy notice period. Employees who experience unfair investigation processes rarely reintegrate well, and the resulting mistrust can spread through a team and outlast the original conflict.

Takeaways for HR Professionals

• Plan the workplace recovery phase before the investigation concludes. Define what re-integration, accommodation, and communication will look like.
• Assess and adjust the environment as needed. Revisit workplace policies, reporting lines, and working conditions where the conflict arose.
• Protect all parties from reprisal — real or perceived. Scrutinize any adverse action that follows a complaint and be alert to timing.
• Meaningfully engage in return-to-work conversations and accommodation discussions. Meaningfully inquire about restrictions and accommodation and seek legal advice before contemplating termination.
• Document recovery steps as carefully as the investigation itself, so the organization can demonstrate the process if challenged.

Written by: Robin Nyamekye, Turnpenney Milne LLP