Addressing Harassment in the Workplace
Workplace bullying and harassment policies are now legally mandated in most provinces. Here’s what you need to know.
Historically, employers were encouraged to implement workplace bullying and harassment policies as a best practice. That practice has now been legally mandated by Workers Compensation Statutes in most provinces. Bullying is a form of harassment and captured in the general definition as any conduct, taken in circumstances where the actor knew or reasonably ought to have known that actions were likely to cause the recipient to be humiliated or intimidated.
Reasonable discipline and direction from employers and supervisors are excluded as a basis for harassment complaints but those complaints still need to be processed.
While employers may craft a policy suited to their workplace, their harassment policy must include the following information so that employees know how any complaints will be handled:
- How and when investigations will be conducted
- What will be included in the investigation
- Roles and responsibilities of employers, supervisors, workers and others;
- Follow-up to the investigation (description of corrective actions, timeframe, dealing with adverse symptoms, etc.)
- Record keeping requirements
Employers must also ensure their policy is made known to employees and they must follow their own policy. Creating a culture that does not tolerate bullying or harassment is much like any other health and safety concern. It requires constant attention, training and reminders. The courts can and do evaluate employer decision-making in light of compliance with their own policy.
Sources of liability and harassment policies
Employers are prohibited from retaliatory discipline against parties reporting harassment. Except in cases of false reports, there should be no adverse consequences to bringing a claim of harassment forward. Where it is determined that an employee has been terminated or suffered other adverse employment consequences due to reporting harassment in the workplace, the employer may be obliged under Worker's Compensation Legislation to reinstate the employee, pay lost wages, take other steps as directed or may be liable for wrongful dismissal.
In some cases, where the harassment relates to a human rights protection such as gender, race or religion, there may be additional or dual obligations on an employer to be proactive and responsive to workplace issues. The publicity surrounding the #MeToo movement has reinforced employer obligations to eliminate sexual harassment from the workplace or face liability from the harassed employee. In order to distance themselves from employees that are alleged to have committed sexual harassment, employers may be tempted to fire first and ask questions later.
However, recent case law has called employers to task for failing to exercise prudence when terminating for allegations of sexual harassment, given the damage such severe accusations can have upon the reputation of employees should the accusations prove to be unfounded. The effectiveness of an employer's policy and investigation in response to such allegations may be put directly at issue in any ensuing litigation.
In van Woerkens v. Marriott Hotels of Canada Ltd., the courts reviewed the process involved in an investigation into an allegation of sexual harassment. Marriot's policy manual included an acknowledgement on the part of Mr. van Woerkens that harassment was grounds for summary dismissal. The policy also stated that all associates, regardless of position, were to be treated with respect and fairness at all times and a right for employees to pursue a process with the employer for the review of facts and circumstances leading to any unfairness. After Mr. van Woerkens’ termination, he brought a claim for wrongful dismissal alleging that he was not provided procedural fairness under Marriott's policy.
The court ultimately upheld the termination but not before carefully reviewing the investigation procedures against the company's stated policy to ensure compliance. Had Marriot failed to follow its own policies it is likely that the dismissal would not have been upheld.
What to do
Harassment in the workplace is a serious issue as is enforcement of workplace policies forbidding it. All complaints must be treated seriously and special attention given to following the processes outlined in the harassment policy. Failure to do so undermines the validity of the policy and the employer's credibility. It also may expose employers to further liability.
Employers should seek legal advice in drafting and implementing their harassment policy. They should also remember that prudence is key when addressing allegations of harassment and that their own policies will form part of a matrix under which their decision-making will be evaluated. When in doubt, consult with a lawyer to determine how best to proceed.
This article is for informational purposes only. It is not legal advice. Always consult with your lawyer regarding your specific circumstances.