Employees have options when harassed at work: Mandin

Victims of harassment should not be afraid to seek legal advice, says Toronto civil litigator Stephany Mandin.

Mandin, principal of Mandin Law, has been involved in a spate of recent matters dealing with workers or students who took action against their employers or educational institutions following incidents of sexual assault or harassment.

And while recent cultural and legal shifts have made society more receptive to victims who try to hold their abusers to account, Mandin says she still detects a degree of stigma for those who hire legal help to guide them through the process.

“If someone were hit by a car, there would be no question of them going to a lawyer to talk about their potential damages,” she tells AdvocateDaily.com. “But for some reason, in the context of sexual violence, people seem to think that seeking counsel suggests some untoward purpose. That’s a feeling I would like to eradicate.”

Mandin says that while costs can sometimes present a barrier for victims, many lawyers, including herself, offer free consultations. In addition, a program run by Ontario’s Ministry of the Attorney General provides four free hours of legal advice for certain victims of sexual assault.

Following recent changes to Ontario’s Occupational Health and Safety Act (OHSA), employers are required to conduct risk assessments and formulate policies regarding workplace violence and harassment. Similar changes have been enacted to the Canada Labour Code, which applies to federally regulated employers. Mandin says these policies should mark the starting point for someone who believes they are being harassed at their place of employment or learning.

“Some employers will have a toll-free number to call or a contact in human resources where a complaint can be lodged,” she says. “These policies should allow you to quickly access a neutral person to provide advice on your next steps — and if they don’t, that could in itself constitute an issue for the employer.”

Harassment doesn’t have to occur within the four walls of the employer’s establishment to warrant a complaint, Mandin says, noting there are documented cases involving employees at work-related seminars away from the office, or even at social gatherings such as a workplace Christmas party.

“The key question is whether there is a sufficient nexus between the incident and the workplace, such that it results in a poisoned work environment,” she explains.

Once an investigation is underway, Mandin says complainants have a right to be protected by their employer, even though the accused person will be entitled to the presumption of innocence until a final determination is reached.

“Make sure you articulate and identify what you require for your safety because you are entitled to feel comfortable at work,” she says.

Appropriate safety measures will vary depending on a variety of factors, including the seriousness of the allegations, and the working relationship between the main parties.

“Harassment and assault allegations run a spectrum,” Mandin says. “At the lower end, interim measures for a complainant whose colleague is making unwelcome comments may simply be to separate them from one another. At the other end, temporary paid leave may be the best option for a person accused of a violent physical assault, along with counselling or therapy for the complainant.”

She says the seriousness of an alleged offence may also affect the way a complaint proceeds, and that employers should offer victims the option to resolve matters formally or informally.

The formal route involves a full investigation, report and findings on liability. Informal resolutions, on the other hand, can be achieved by agreement or via mediated settlement without any findings of liability, allowing the matter to be disposed of with a no-contact order, harassment training, or another similar arrangement.

Mandin says both the complainant and the subject of the investigation must agree to an informal resolution, which makes the process less suitable for more serious allegations.

Either way, she says both sides deserve to have investigations proceed as quickly as possible.

“Depending on the complexity of the case and the number of witnesses, it may drag on for weeks or longer, but you shouldn’t be twisting in the wind for six months with no updates,” Mandin says. “When there is an outcome, reasons should be provided that are based on the evidence and commensurate with the applicable legislative and policy requirements.”

Importantly, both the OHSA and the province’s Human Rights Code protect employees from suffering reprisals as a result of workplace complaints, she says.

“The purpose of the legislation is to prevent a chilling effect where people are too afraid to come forward. You should not have to be worried that your complaint will be met with negative actions.”

Regardless of the contents of any policy or the outcome of an investigation, Mandin says employees retain their right to seek redress through the courts or at administrative tribunals, such as the Human Rights Tribunal of Ontario.

Mandin’s “employee cheat sheet” for complainants alleging harassment includes the following advice:

• You should have clear access to an initial contact person or entity who will provide confidential, neutral information and access to the next steps.
• You should be free from reprisals and entitled to make your complaint in a confidential, safe environment.
• You are entitled to interim safety measures, with the caveat that there is no finding of wrongdoing until the process is complete.
• You are entitled to a timely investigation and should be able to seek legal advice.
• At the conclusion of any investigation, you should receive the decision, the reasons for it and any next steps.

This is the final installment of a two-part series on harassment and the duty to investigate.

For part one, which focused on employers’ duties, click here.