Who can be a bystander?
When a third-party witnesses or learns about an inappropriate interaction experienced by someone else, they are considered a “bystander”.
Bystanders are not targets or offenders; they are direct or indirect witnesses. They can play a significant role in an investigation by providing information about what they observed.
Bystanders Can:
- describe an incident of potential harassment more objectively than the parties involved. “call out” conduct in real-time to help interrupt inappropriate behaviour.
- help stop difficult interactions from escalating.
Bystander intervention has emerged as an effective strategy for handling interpersonal conflicts. Bystander intervention training teaches employees different ways they can safely intervene and de-escalate difficult situations.
Research shows that bystander intervention can be an effective way to target and curb aggressive workplace behaviour. It also sends a strong message to others that the behaviour in question is unacceptable.
Confrontation may not always be the safest option. Bystanders can intervene in other ways, including making a third-party complaint.
The Bystanders Dilemma
There are complex emotional dynamics involved when individuals witness workplace aggression and harassment. Bystanders are often forced to make difficult decisions about whether they should intervene.
Other factors may limit the likelihood that a bystander will take action.
- They could lack the courage and skills to intervene during a difficult workplace interaction.
- They may fear backlash or retaliation by the aggressor.
Employer Accountability:
- Create a culture of accountability by developing and implementing policies, procedures, and training programs about bystander intervention and how it relates to their anti- harassment and anti-discrimination policies.
- Implement or update policies to include the procedure for an employee to make a third-party complaint- a complaint brought forward by someone who has witnessed or heard about workplace harassment and discrimination.
Bystander Awareness:
- Follow up and report incidents that they witness or hear about.
- Understand how to report incidents to human resources/ management as outlined in company policies.
Failure to Assist and Bystander Liability
Bystanders may face legal consequences if they are in a position of authority and fail to act when they become aware of incidents of harassing or discriminatory behaviour in the workplace.
Bystanders and Employer Investigations
Third-party complaints can be challenging because the complaint does not come directly from one of the parties involved in the reported incident. This means that it’s not always clear what an employer’s obligations are when they receive a third-party complaint.
Are employers required to investigate third-party complaints of harassment and discrimination?
- Many policies require employers to resolve third-party complaints.
- Employers are required to create policies that explain how an employee can submit a third-party complaint, how their complaint will be investigated, and how it will be resolved.
- If a workplace policy is entirely silent on third-party complaints, employers may still have legal obligations to investigate them.
In Ontario, under the Occupational Health and Safety Act, employers are required to ensure that an investigation is conducted after they are made aware of incidents of workplace harassment- whether they have received a formal complaint or not. Third-party complaints are a way employers are made aware of incidents and should be investigated.
Case Law
Crete v Aqua-Drain Sewer Services Inc, 2017 HRTO 354
The Human Rights Tribunal of Ontario explained that, under the Ontario Human Rights Code (the Code), “employers are obligated to take reasonable steps to address complaints of workplace human rights violations” This is generally known as the “duty to investigate”. If an employer fails to investigate a complaint of discrimination, the employer can be found in violation of the Code even if it is ultimately determined that no discrimination occurred”. This could include third-party complaints.
Laskowska v Marineland of Canada Inc 2005 HRTO 30
Leading case on an employer’s duty to investigate under the Code.
The Tribunal asked whether the employer was aware of its duties under the Code and considered the following questions:
- Did the employer demonstrate an understanding of discrimination and harassment? Was the employer properly equipped to respond to complaints?
- Did the employer have appropriate and adequate workplace policies in place? Did the employer act promptly to the complaint?
- Did the employer conduct a proper investigation?
- Was the employer’s response sufficiently sensitive to the complainant’s needs?
Resolution Duties
The Tribunal reviewed and considered the overall “reasonableness” of the employers response to the complaint
In the above-noted case, the Tribunal held that the employers will be held to a standard of reasonableness, not perfection.
When is the duty to investigate triggered? As soon as the employer becomes aware of a potential Code violation. As such, if an employer receives a complaint from a third- party that discrimination may be occurring in their workplace, they have a duty to investigate that complaint.
Key Takeaways
Policies, Procedures, and Training
- Employers are obligated to take proactive measures, not just to limit their liability, but also to ensure a healthy and safe work environment for employees.
- Employers can actively encourage bystanders to bring forward any complaints of workplace harassment and discrimination by implementing training, policies and increasing awareness.
Complaint Investigation
- Employers may not dismiss a third-party complaint based on the fact that they do not have a specific policy in place. if an employer receives a complaint from a third party that incidents of discrimination or harassment may have occurred in their workplace, they have a duty to investigate that complaint.
- If an employer fails to meet their obligations under the Code, the consequences can be costly.
- From a risk management perspective, it is best to investigate all complaints, regardless of their source. An employer will never be faulted for going above and beyond what the law requires.
HR Proactive Inc., offers: Bystander Intervention Training.
