Workplace harassment and violence prevention obligations

Every Canadian jurisdiction imposes harassment and violence prevention obligations on employers, though they are framed differently — in occupational health and safety legislation in some places, in labour standards in Quebec, and in dedicated regulations for federally regulated workplaces. What they share is that the obligations are largely procedural. You are required to have a process and to follow it.

The common building blocks

• A written policy that defines the conduct covered and is communicated to workers.
• An assessment of the risks specific to your workplace, revisited as conditions change.
• Training so that workers and managers know what the policy requires of them.
• A reporting route that does not require going through the person complained about.
• An investigation process, and a way to communicate outcomes to those involved.

Investigation is where employers most often fall short

The duty to investigate is generally triggered by awareness of a possible incident, not by a formal written complaint. An employer who hears about conduct informally and waits for paperwork has often already failed the obligation. Investigations must also be conducted by someone without a stake in the outcome — which frequently means someone outside the reporting line of the person complained about, and sometimes someone outside the organization.

Findings can be adverse to an employer even where the underlying conduct is never substantiated, purely because the response was inadequate. The process is assessed on its own terms.

Confidentiality and reprisal

Keep investigation material confidential and limited to those who need it, while recognizing that participants are generally entitled to know enough about the outcome as it affects them. Reprisal against someone who reports or participates is separately prohibited, and post-complaint changes to schedules, duties, or reporting lines will be read in that light — so document the independent business reason before making one, or wait.

Running an investigation that stands up

Most of what makes an investigation defensible is decided in its first stage, before any evidence is weighed. Settle the scope — what specific allegations are being examined — and put it in writing, because an investigation that drifts into unrelated territory becomes difficult to defend for everyone involved.

• Choose an investigator with no stake in the outcome and no reporting relationship to either party, and consider an external investigator where seniority or complexity makes internal neutrality doubtful.
• Tell the respondent what is alleged in enough detail to answer it, and give them a genuine opportunity to respond.
• Interview the people identified by both parties, not only those the complainant named.
• Take contemporaneous notes and keep the evidence you relied on, rather than only the conclusion you reached.
• Apply a balance-of-probabilities standard and state findings as findings, without editorializing about either party.
• Consider interim measures while the process runs — separation of duties or schedules — chosen so they do not penalize the complainant.

After the findings

An investigation that concludes and then produces nothing is a familiar failure. Where conduct is substantiated, the response has to be proportionate and actually implemented, and where it is not substantiated, that outcome still needs to be communicated and the working relationship still needs attention. Both parties are generally entitled to know the outcome as it affects them, even where the full report is not shared.

Close the loop on the systemic side as well. If the process surfaced a gap — a reporting route nobody knew about, a manager who did not escalate, a risk the assessment missed — record it and fix it. Prevention obligations are continuing rather than one-time, and a pattern of complaints handled individually without any change to the conditions that produced them is itself a finding waiting to be made.

Who and what the obligations reach

Employers frequently scope these obligations too narrowly, applying them to direct employees during working hours at a company site. The frameworks generally reach further than that, and the gap is where incidents fall through.

• Conduct by clients, customers, patients, contractors, and members of the public can engage the employer's prevention obligations toward its own workers.
• Work-related conduct away from the workplace — travel, conferences, work social events — is commonly captured where there is a sufficient connection to the employment.
• Online conduct counts. Messaging platforms, email, and video calls are workplaces for this purpose, and remote arrangements do not narrow the obligation.
• Domestic violence that follows an employee into the workplace triggers duties in several jurisdictions once the employer is aware of a risk.

Scope your risk assessment against how your people actually work rather than against an office floorplan, and make sure the reporting route is available to someone who is remote, on a client site, or working outside ordinary hours.

Confirm the specific requirements for your jurisdiction and sector, and review your policy against them rather than against a generic template. Serious complaints warrant advice early — the decisions made in the first days of an investigation are the ones most often scrutinized later.