You can make a formal complaint if you have been sexually harassed at work. Your workplace Harassment Prevention Policy must outline how to do this. Once you make a formal complaint there must be an investigation and a finding about whether there has been harassment as defined under occupational health and safety laws.
Studies show that the vast majority of individuals who experience sexual harassment in the workplace do not make a formal complaint. When surveyed, the most common reason for not filing a complaint was the perception that the behaviour was not serious enough. Sexual harassment is always unwelcome, and it is always unlawful.
When you make a formal complaint it will generally be in writing and include your name. Your workplace should have a complaint form that you can complete. You will be asked to identify the alleged harasser, explain what happened and how it is harassment. For example, you may feel you have been harassed because of your sex or that the person has humiliated you on a number of occasions. You may also be asked about how you think the matter should be resolved. If an investigation is required the alleged harasser will receive a copy of your complaint.
Are you unsure about whether something you are experiencing or witnessing is considered sexual harassment? You are entitled to up to 4 hours of free legal advice under the Shift program to discuss workplace sexual harassment issues.
When a formal complaint is made, a determination of whether workplace sexual harassment occurred must be made. While the definition of harassment used in The Saskatchewan Employment Act must be included in your workplace harassment prevention policy, the policy may expand on this definition and include specific examples.
Your policy may also set out what is not considered harassment. Under the Act, reasonable action by an employer, manager or supervisor that relates to the management and direction of a worker or the workplace is not harassment, even if it is hurtful or humiliating. These actions must be reasonable and not abusive. Types of actions that are not considered harassment include things like performance reviews, inspections, decisions about work assignments, dress codes and disciplinary actions.
Your employer must investigate to determine if harassment has occurred unless the alleged harasser admits to the conduct. Some employers will hire independent third parties to investigate on their behalf. Small employers, who do not have the capacity to investigate, can ask Occupational Health and Safety to become involved.
Both you and the alleged harasser have certain rights regarding investigations into a formal harassment complaint.
Employers must take seriously allegations of sexual harassment. There is no specific standard of investigation that employers must follow; what is required will vary depending on the facts surrounding the employer, its policies, sophistication, experience and the workplace… Nevertheless, how the employer reacts is subject to judicial scrutiny. Its responsibilities do not give it licence to conduct an inept or unfair investigation or behave in malicious, vindictive, or outrageous ways. ~Elgert v. Home Hardware Stores Limited (Alberta Court of Appeal)
This includes your name, the name of the alleged harasser, and the circumstances of the complaint. Your employer cannot disclose such information except where it is necessary during the course of the investigation or for the purpose of taking corrective action to address the complaint. Here, it is important to note that the alleged harasser is usually entitled to receive a copy of the complaint as part of an investigation and must receive enough information about the complaint to be able to answer the allegations against them. Information may also be disclosed where it is required by law.
In the current legal climate, it can certainly be said that the parties in an investigation have a right to privacy and confidentiality. The more sensitive the subject matter of the investigation, the more care that an employer would be wise to take in protecting these rights. That being said, there are limits to these rights, as certain information must, by necessity, be shared in the investigation process in order to be fair and thorough.
For example, fairness would seem to dictate that the respondent to an investigation has a right to know the identity of his/her accuser. In addition, both courts and human rights tribunals have repeatedly held that the respondent is entitled to be provided with the particulars of the complaint in order to be able to provide a meaningful response.
~ Investigating Allegations of Harassment & Workplace Violence: Practical Considerations, Osgoode Hall Law School, York University, 2012
Your workplace's Harassment Prevention Policy should provide you with information about measures that are in place to ensure that the complaint process is fair and unbiased. Generally speaking, this will mean that both parties having an opportunity to tell their side of the story to an impartial person – a neutral party that doesn’t have close ties to the parties or witnesses or a stake in the outcome of the investigation.
The alleged harasser also has this right.
The time it takes for an investigation to take place will vary depending on things like the complexity of the complaint, the number of witnesses to be interviewed, the availability of the parties, and whether the investigation will be conducted internally or through an external third party. With that in mind, investigations should not involve any unnecessary delay.
Employers have certain obligations once an investigation is complete.
It may be determined after an investigation that harassment as defined by your workplaces Harassment Prevention Policy has not occurred. This does not necessarily mean that the behaviour was acceptable. You should be informed of other possible avenues including making a human rights complaint or involving Occupational Health & Safety. When a complaint is made in good faith, employers cannot take any action against you because the complaint was not proven. However, if an employer has good evidence that a complaint was made in bad faith disciplinary action can be taken.
If it is determined that you have been harassed your employer is required to take action. Your workplace Harassment Prevention Policy does not need to spell out exactly what will happen in each case but employers must ensure that:
This site provides general information about workplace sexual harassment only. It is not a substitute for receiving legal advice about your situation. Apply now to receive 4 hours of free legal advice.
The Shift Project is funded by the Department of Justice and delivered by the Public Legal Education Association of Saskatchewan (PLEA).