Let’s face it, a lot of our role as HR leaders is listening. Most employees spend the majority of their waking hours at their job, which makes it a huge part of their life. The human element is the most unpredictable element in the majority of professional environments and for the most part, it is our job to navigate this. But, you know what they say, with great power comes great responsibility.
A lot of the time, at least in my experience, people just want someone to listen to them, value their opinion and support them. However, some of the complaints we hear are more serious and this is where liability enters the chat. Employee grievances are extremely tricky situations, because often they involve several team members, leadership, company policy and even, if you’re unlucky, allegations of employee rights violations.
According to the government of Canada, The Canadian Human Rights Act prohibits discrimination on the basis of gender, race, and ethnicity. The government has also established Canada’s Employment Equity Act and the Federal Contractors Program, which require employers to make every effort to improve the employment opportunities for specific groups of people in our country. The rights of foreign workers in Canada are also protected under federal or provincial/territorial labour laws. So we have several different factors at play here, including what actions you are taking already, the employees involved and if they have a legitimate reason to believe they have been discriminated against.
Luckily for us, the Canadian government also outlines the process of filing a complaint and step one is the requirement for the employee to first attempt to handle the complaint internally utilizing internal dispute resolutions. The only problem with that in Ontario, is “the Code”sounds ominous right? The Ontario Human Rights Code prohibits discrimination against people based on a protected ground in a protected social area. Employees are obligated to inform employees that having an internal process for resolving complaints does not in any way stop them from going to the Commission, Tribunal or courts. Furthermore, it is possible for employers to violate the Code both indirectly and unintentionally. Employers are still determined to have violated the Code even if they do not directly infringe on the Code, but simply authorize, condone, adopt or ratify behaviour that is not supported by the Code.
Assuming we have determined we need to investigate, keep in mind here that the internal investigation must meet the criteria of the Laskowska test to adhere to the Code. The Laskowska test analyzes the response of the employer (that’s you) to the complaint at three different stages of the complaint and investigation process.
- First, our preparedness and awareness of issues will be assessed. Here we will be looking for anti-discrimination and harassment policies, complaint policies and proicesses and the presence of harassment prevention trainings.
- Next, our immediate reaction to the complaint will be scrutinized. What action was taken to address the complaint?
- Lastly, we must support our recommendation for resolution and detail how we determined the outcome.
With all this preparation and documentation surrounding the grievance itself, make sure we are not losing sight of the fact that an investigation and outcome may have a large impact on your employees. Not only is there a possibility of having to discipline, or terminate an involved party, but you also have to plan for any possible situations which may arise post-complaint.
According to the 2020 Public Service Employee Survey, only 55% of employees indicated that they felt they could initiate a formal recourse process without fear of retaliation. That is an incredibly low confidence score. This reminds us that once we have documented and cleared the complaint process, our work is not over. If we have awareness of an employee complaint, we have to keep that in mind for, essentially the entire duration of their employment. This is one of those fun HR catch 22’s, we cannot treat an employee differently because they have filed a complaint, but we also have to make sure that if they are disciplined in the future, we have thorough enough documentation and reasoning so as to avoid it being viewed as retaliatory in any way.
The complaint process is a healthy and necessary mechanism within the workplace. How we respond to the complaints could run the spectrum of successfully righting an injustice and protecting our employees and the company, to costing us a lot of time and money in arbitration. The difference between these two outcomes could come down to preparation, documentation and knowledge. We cannot predict all employee complaints, but proactive approaches to the employee experience could certainly make our lives a lot easier down the line.