Few would disagree the workplace should be safe and free from violence and harassment of any kind. Recent high-profile sexual harassment cases demonstrate the devastating impact on individual employees, as well as the fallout to an organization, when a culture of harassment is permitted to exist.
Defining the rights of employees and the obligations of employers has evolved via legislation and the decisions of courts and various administrative tribunals. For employers, the importance of understanding and responding to these obligations has never been greater.
In Ontario, Bill 132, also known as the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), signals the continued evolution of a more informed, transparent and robust legislative response to issues of workplace harassment.
The legislation broadens the definition of workplace harassment to include “sexual harassment” and expands the obligations on employers with respect to workplace harassment policies. Effective September 2016, employers will be required to review and update written policies or programs to ensure they deal with how investigations and privacy concerns will be balanced.
Requirements include: how information about an alleged incident is to be obtained (including individuals involved); when and how information will be disclosed; how the worker and the alleged harasser will be informed of the results of the investigation; any corrective action that has been or will be taken; and inclusion of measures for the reporting of harassment where the individual designated by the employer for the reporting of the harassment is the alleged harasser.
Perhaps most importantly, Bill 132 provides inspectors with the power to make orders that the employer, at its own expense, retain an impartial third-party investigator to conduct an investigation into a complaint of harassment.
Bill 132 is similar in intent to legislation across Canada. It seeks to: aggressively expand the definition of harassment in the workplace; refine the investigation procedure; and attempt to ensure transparency of the process and the protection of the worker who complains.
What is unclear is how this heightened sensitivity, and additional procedural protection, will impact the workplace. While no organization would question the importance of ensuring and maintaining a harassment-free workplace, the additional obligations and powers that may come with increasing legal obligations, not to mention potential financial and human resource cost, raise a host of concerns.
Employers can at least take comfort that in defending against allegations of improper or wrongful termination, courts, arbitrators and tribunals will view any alleged conduct that falls within the definition of workplace or sexual harassment very seriously.
In the much-quoted case of Kingston (City) v Canadian Union of Public Employees, Local 109, arbitrator Elaine Newman was faced with deciding whether the termination of an employee for uttering a death threat to a co-worker was cause under the collective agreement.
This was an early interpretation of amendments to the Ontario Occupational Health and Safety Act (known as Bill 168) and provided considerable insight into the criteria used to determine cause where there is an allegation of violence or harassment in the workplace.
In upholding the city’s decision to terminate, Newman provided a framework for “with cause” termination for violence in the workplace. Specifically, she stated that employers cannot take a passible stance to allegations of violence and hope the issue sorts itself out. Threats were serious and needed to be reported, investigated and addressed. Equally, the legislation impacts the manner in which an arbitrator will assess the reasonableness of an employer’s decision to terminate an employee in the circumstances. The legislation imposes additional factors to be considered when assessing the reasonableness and proportionality of the decision to terminate.
In the recent arbitration case of United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, arbitrator Laura Trachuk addressed a termination for harassment and violence in the workplace that took place via social media and could be considered “off-duty conduct.”
An employee of Tenaris (a crane operator) was unhappy with the performance of a female co-worker. He went on Facebook and complained and although he did not use her name, he mentioned a nickname and references to her appearance that made her readily identifiable.
After reading the Facebook post, another employee suggested performing a physically aggressive act against the female employee to which the crane operator agreed and further suggested that a violent and humiliating sex act be inflicted on the female co-worker.
Algoma terminated the crane operator. Trachuk’s comments summarize both the approach to sexual harassment and violence in the workplace and the obligations of the employer:
“An employee does not necessarily get one free sexual harassment before he loses his job. The grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men ‘joke’ about the sexual violence they should inflict on a woman, she can reasonably be concerned that they may actually hurt her… (T)he grievor sexually harassed X and created a poisoned work environment. The grievor is not a long-term employee and the company could have little confidence that he could be trusted to never harass someone else. The company is responsible under the Human Rights Code, OHSA and the collective agreement for maintaining a workplace free of harassment and, in these circumstances, reinstating the grievor would be contrary to that goal, even if he were assigned to a different shift from X. This is not an appropriate case for progressive discipline. I do not find that the company violated the collective agreement by terminating the grievor’s employment. The grievance is denied.”
Algoma was able to rely on its policies concerning workplace violence and harassment to prove just cause for the termination of the employee based on his actions against his co-worker, even though those actions were via social media and the termination wasn’t based on the concept of “progressive discipline.” Whether a court, arbitrator or tribunal will do so in similar circumstances depends on a host of factors, including the content of the policies concerning social media use, harassment and off-duty conduct, as well as the specific nature of the conduct in question.
What is clear is the stakes have never been higher. Failure can result in a workforce that may lose faith in the employer’s ability to provide a harassment-free working environment, which leads to poor morale, higher absenteeism and possible legal liability.
The response by employers should be one of vigilance, reasonableness and diligence. Some helpful tips include the following:
Review and implement any legislative requirements. Assess risk for all forms of harassment, violence and domestic violence in the workplace.
Improve or develop a policy:
Address each risk and how it will be dealt with while respecting the privacy rights of all employees involved (even the alleged harasser). Bring in the joint health and safety committee, workers, supervisors and experts if necessary.
Develop an action plan:
It should address the process for the investigation of complaints, the assessment of risks and the consequences of non-compliance.
Understand the investigation process:
The risk of conducting a flawed or improper investigation is considerable. In Ontario, an officer may order an investigation based on his review of the circumstances. Where appropriate, this may mean a third-party investigator at additional cost.
Like many situations where allegations of improper conduct are made, consider the evidence carefully. Don’t assume. Make rational decisions based on available information and evidence.
Allegations of harassment or violence are difficult to make and can be devastating to both the victim and the alleged harasser.
The law will continue to evolve in this area, as will the obligation of employers to ensure compliance. Both employers and employees hope the result will be a movement towards a workplace free of harassment and violence. And that is worth the effort.
Lorenzo Lisi is the practice group leader of the labour and employment group at Aird & Berlis LLP in Toronto. He can be reached at firstname.lastname@example.org or (416) 865-7722.
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