Dealing with a Harassment Complaint
“I can’t believe that one of my employees has filed a formal harassment complaint against her manager claiming he has been making ethnic slurs and insulting her! The manager has denied this. We instituted Bill 168 last year, and our policy outlines how to file a formal complaint and what steps will be taken to deal with it, but now that it’s happening I really don’t have any idea how I am going to manage this situation. The employee is at home and has refused to come back to work until the complaint is investigated and resolved. Does she have the right to walk out and do I have to pay her? How am I supposed to know who is telling the truth?”
When a situation like this happens, it can be an employer’s worst nightmare. Not only because of the emotional toll and time commitment it places upon the employer, the complainant and the respondent, but also because of the impact it can have on day-to-day business operations as the focus shifts from business to employee relations.
Seldom do these complaints come as a complete surprise. In most cases there have been earlier indications that a problem may be brewing. Has there been conflict in the past between the manager and the employee? Has the office grape-vine been engaged but you chose to ignore it? You’ve previously overheard the manager make disparaging ethnic remarks in general terms but not specifically at the employee? Has the employee used his or her ethnicity as an excuse for poor performance in the past?
Many employers can be aware of issues, but choose not to deal with them, because they don’t want to make matters worse or they are afraid of opening a larger issue that they are not equipped to deal with.
A formal complaint is a very serious issue. While an employee may only decide to use the office formal complaint avenue, he or she is also entitled to lodge a complaint with the Human Rights Commission.
What can you do?
1. Act immediately. If your policy states that the complaint will be investigated within “10 days” don’t wait. Let both the complainant and the respondent know that you take the matter very seriously and that you will begin an immediate investigation.
2. Consider the reporting relationship. Have the complainant report to someone else in the interim. In a small office, this may not be possible and it may be necessary to have the complainant or the respondent work from home.
3. Ensure confidentiality. Make it clear to both parties there must be no discussion amongst other staff.
4. Engage an outside investigator or third party. Investigation of internal complaints, even by your HR manager, is never a good idea. It is nearly impossible for someone to remain unbiased in their approach to an internal complaint.
If you do choose to investigate the complaint yourself you will need to:
1. Review the written complaint and interview the complainant in person. Ask for specific incidences, whether there were witnesses, when the harassment began, how many incidences there have been. Ensure that the interview is non-threatening and non-judgemental. Outline the next steps and document. Have the complainant review the documentation and agree that what you heard and documented is correct.
2. Inform the respondent of the allegations and conduct a fact finding interview. Cite the incidences and the dates and times of each and ask for confirmation or denial. Document the discussion and again ensure the respondent agrees to the facts stated in the documentation.
3. Interview the witnesses. This can be very difficult because you have to weigh the relationship between all parties; you have to maintain confidentiality and you cannot appear biased. Document individual statements and ensure the witnesses each have the opportunity to agree to the documentation. Make changes as necessary.
Take time to review all of the statements, assess the facts and separate the facts from what might be fiction. If you cannot come to a firm conclusion based on the substantiated facts, you may want to consult a professional investigator to assist.
Meet with the complainant and the respondent separately and inform them verbally, and in writing, of the conclusion. If the complaint is valid, then disciplinary action against the respondent will be required. If there is no merit to the complaint, there may also be disciplinary action required if the complaint is considered to incite aggravation.
Always keep in mind the consequences of whatever decision you are making. No matter whether you find in favour of the complainant or the respondent, if an employee does not feel that he or she has been dealt with fairly, they can, and may, lodge a complaint with the Human Rights Commission.