Safety, workplace culture, legal issues all affected by how workplace harassment is handled
Harassment can be damaging to both the employment relationship and workplace culture. And so can an employer’s inadequate response to it, which can also open up legal liability.
Canadian HR Reporter recently reported on a survey found that almost three-quarters of Canadians have experienced at least one form of sexual or non-sexual harassment and violence, while seven out of 10 employees aren’t happy with HR’s response to their safety and wellbeing in the workplace. This could be a problem for some employers, as they have a legal obligation to investigate workplace harassment allegations. If they don’t, or if it’s not done properly, there’s likely going to be more trouble.
Governments across Canada have taken measures to combat workplace harassment and violence, and in some jurisdictions it’s part of the employer’s obligations under occupational health and safety legislation. A couple of years ago, the federal government brought in Bill 65, which requires federally regulated employers to not only address complaints, but to also be more proactive by conducting workplace violence risk assessments and anti-harassment training.
Certain types of workplaces may lend themselves more easily to harassment, so employers should be aware of this and be ready to act. For example, an Ontario company had an industrial work environment that was male-dominated, where some workers posted photos of scantily clad women and engaged in sexual banter. A female supervisor felt uncomfortable with much of the behaviour and reported it, but the company only did a cursory investigation and downplayed her concerns. It eventually fired her five days after her complaint.
The Ontario Superior Court of Justice found that the company breached the supervisor’s human rights when it failed to properly investigate and ordered it to pay the woman 10 months’ pay in lieu of notice, $85,000 in moral and human rights damages, and $25,000 for the breach of her human rights: see Doyle v. Zochem Inc., 2016 CarswellOnt 19295.
However, when employers properly handle complaints, things can go in their favour. A B.C. company had to deal with a female employee’s complaint relating to harassment by a male co-worker at an off-site training session. The company investigated and decided to fire the male co-worker, but the co-worker sued for termination pay. He argued that they were both intoxicated and his colleague only complained because she was afraid her husband would hear about it.
An employment standards officer ordered the company to pay compensation for lost wages, but the B.C. Employment Standards Tribunal overturned the decision, finding that “alcohol consumption does not excuse or mitigate the seriousness of an employee’s sexual harassment.” See Employer (Re), 2021 BCEST 58.
Not all harassment complaints have merit, but employers are still required to investigate them. A federal government employee filed a complaint that her employer didn’t properly investigate her harassment grievance, as she wasn’t happy with the employer’s determination that the conduct she reported didn’t meet the definition of harassment under its policy. The Federal Court, however, found that the investigation was complex, involved multiple parties, and was fairly conducted.
Just because the employee disagreed with the outcome didn’t mean the investigation wasn’t comprehensive or made reasonable findings: see Green v. Canada (Aboriginal Affairs and Northern Development), 2017 CarswellNat 7095.
If employees don’t feel that the employer is handling workplace harassment and violence – and by extension employee health and safety – it can lead to multiple problems for the employer. The key is to ensure a fair and comprehensive investigation is conducted whenever a problem arises, as it will put the employer in a better position, both legally and in the context of workplace culture, regardless of the outcome.
