The OHSA requires an investigation if there is genuine harassment alleged but, despite the preachings of the investigation lobby, this investigation need not and, in my experienced view, should not, be conducted by an outside investigator.

For the reasons provided in previous columns — including expense and delay; lack of knowledge of the company, its policies and culture; the appearance that a “hired gun” is being brought in; and the economic incentive to prolong and expand the assignment — it is seldom in the interest of an employer to use a third-party investigator.

On those rare occasions in which it is, such as an investigation of the conduct of the CEO, I recommend using a retired judge, rather than a lawyer, with the trained skills of fact-finding and the respect of all stakeholders, including the court if the matter proceeds to trial.

Another problem with using an outside lawyer is that it permits the employee to bring their own lawyer to the meetings, which they otherwise cannot do.

Must every petty complaint give rise to a full-blown investigation, the response of too many HR departments?

From the wording of my question, you can likely predict the answer.

Harassment is a serious charge and having investigations for every minor dispute devalues and depreciates it. Conflict and accusations do not equate to harassment.

Harassment allegations are increasingly serving as a weapon of office politics. Much time is wasted, resources consumed and careers placed on the line as a result of inherently trivial “harassment“ allegations.

As per the definition above, conduct, to be harassment, must also be vexatious, in other words, targeted at someone for the very purpose of hurting them, without a good-faith purpose. Or, to go back to this definition, the person accused of harassment must have known they were causing offence unless offence was objectively very obvious from the conduct itself.

Unless the conduct was so obviously offensive, without the intent to hurt, the fact that a co-worker takes offence does not mean that harassment has occurred. Many harassment complaints are made without this requisite element of intent and many findings of harassment are made without understanding that core principle.

One common allegation of harassment arises from discipline or other use of managerial control, sometimes alleged to place management on the defensive in the hope of reducing the prospect that the disciplined employee will be terminated.

Similar to complaints of emotional stress in worker’s compensation cases, justifiable discipline or managerial initiative, whatever offence and emotional suffering it causes, is not harassment. The improper weaponization of harassment is as much the fault of employers who misunderstand it as of those employees who deliberately and in bad faith invoke it.