Duty to Investigate Workplace Harassment

Written on behalf of Peter McSherry Law Office
wrongful dismissal
Background Shape/Fill/Blue Shaded

In Zambito v LIUNA Local 183, 2015 HRTO 605, the Human Rights Tribunal of Ontario considered whether an employer met its obligations under the Human Rights Code to investigate and respond to an employee complaint that he had been harassed at work.

Giovanni Zambito was a union organizer for the respondents, LIUNA Local 183. Mr. Zambito is of Sicilian Italian descent and he complained that his co-worker, Mario Oliveira, made insulting and inappropriate comments about Sicilians. Mr. Oliveira, however, alleged that Mr. Zambito had made negative comments about his Portuguese heritage and his response was not intended to offend. The employer assigned in-house counsel, who was not familiar with either man, to investigate the complaint. The investigator conducted interviews with several other employees over the course of two weeks and determined that both individuals had behaviour inappropriately nad made offensive comments.

After the investigation was complete, the employer met with Mr. Zambito and Mr. Oliveira separately and gave them both verbal warnings before having them meet together and reconcile. Several months later, Mr. Zambito was dismissed for unrelated reasons, at which point he filed a complaint stating that his employer had failed to take reasonable steps to address his harassment.

The Tribunal applied a three-part test to the steps taken by the employer in investigating the harassment claim:

  1. Awareness of issues of discrimination/harassment, policy, complaint mechanism and training.
  2. Post-complaint: seriousness, promptness, taking care of its employee, investigation and action.
  3. Resolution of the complaint (including providing the Complainant with a health work environment) and communication.

The Tribunal found that the employer met all three parts of the test and took reasonable steps overall to respond to and address the applicant’s complaint and therefore did not violate Mr. Zambito’s rights under the Code.  The Tribunal dismissed the application.

To find out more about workplace harassment, contact employment lawyer Peter McSherry online or at 519-821-5465.

To read the full decision click here.