The only defence to a Health & Safety complaint is due diligence. When dealing with issues of workplace violence and harassment, many managers, and even Human Resource professionals, are at a loss on what it takes to ensure their company is protected and to prove due diligence.
When the outcome from an investigation seems to clearly demonstrate a violation of the Health & Safety Act of Ontario for harassment or violence, the employer has a clear mandate – correct the inappropriate situation as quickly as possible. Depending on the severity of the incident, this may include termination with cause.
Ideally, the evidence collected during the investigation will prove cause to avoid claims of wrongful dismissal. Of course, this does not prevent a terminated worker or manager from accusing the company of unfair investigation practices, coaching witnesses, or acting against their Human Rights. What should managers do when the complaint is complicated, involves multiple workers, or regards Human Rights issues? As well, what if the outcome of an investigation is unclear?
Many managers struggle with how to handle complicated complaints. Should they still discipline the party? If so, how far should that discipline go? In these instances, how confident can a company be that their findings and subsequent actions will hold up should legal proceedings ensue?
Knowing when an investigation can be conducted in-house and when it should be conducted by a qualified third party is essential for a successful defence of due diligence. Instances of sexual abuse, claims against managers, or complicated claims involving multiple workers may be better investigated through the use of a third party investigator.
Does your company know how to handle their investigation properly so that the defence of due diligence will protect them from prosecution? If your company needs direction, contact us for more information.