Close the door on liability: Train workers to prevent harassment

Employers are quick to slap up codes of conduct but often slow on the follow-through. Failure to properly educate and train all levels of employees — not just management — in harassment and misconduct can leave employers open to liability.

“The problem with effective management of disputes and effective protection from liability is that employers drop the ball part way a lot of the time,” says Melanie Polowin, associate at the Ottawa offices of Osler, Hoskin & Harcourt.

Having a policy in place is the first step, she says, but it is not effective protection unless the company can demonstrate in a concrete way that it means what it says. It has to help employees understand what they are and are not supposed to do.

Everyone in the company needs training and then more training. “If the company fails to train people, it sends the message that it’s just a piece of paper, and they will not take the time or money to help people understand it.”

She adds that in some cases it’s worse to have a policy and not follow it than to not have had a policy at all.

Richard Anstruther, associate, Stringer, Brisbin Humphreys in Toronto, says that while employers tend to be automatically liable for the actions and behaviour of senior-level employees because they are considered to be acting on behalf of the company, they can be held likewise responsible for the behaviour of the rank-and-file staff.

Besides having a policy, employers should be able to demonstrate they have taken reasonable steps to ensure employees are aware of conduct that is prohibited, he says.

A policy needs to be backed up with training and an active complaint and enforcement mechanism, says Paul Boniferro, partner McCarthy Tétrault in Toronto.

He recalls a case he worked on where a company was involved with two very serious sexual harassment complaints, and it was found liable in both. Afterward, it rolled out sensitivity training to all staff, developed with the participation of the union. “They went the extra mile, putting in training with a very formal complaint process.”

When a third complaint arose, the company was in a much better position. “They could say, ‘Look, we’ve done everything we can. We recognize there is still a problem. But we cannot be liable.’

“They allowed themselves to go to court with clean hands,” he says. The company was found not liable in the third incident.

As to how much is enough, Boniferro says, “adjudicators and judges are people too. They won’t hold companies to a higher test than they could hold themselves to. You can’t really control the activities of every individual employee all of the time. But you can provide an environment and consequences. The theory is that over time, disapproval will make it more and more inappropriate for any one person to be in violation of the policy.

“Part of the problem is that it takes a long time. It’s a cultural change,” he adds.

Besides sending a bad message to employees, a company could be liable if a complaint has been brought to light and the policy is not followed to a tee. Polowin says a common incident involves well-intentioned managers who try to solve a conflict on their own, deviating from company policy. And that’s where a lot of companies get pulled into the legal fray.

“Don’t be the hero and take on a situation you figure you can solve. Because in the short-term it may seem OK, but if it goes wrong, you’ll end up contributing to a much bigger problem.”

Polowin says companies do lose sight of the underlying purpose of a policy — to protect employees — in their efforts to protect themselves. “They lose sight that it is the right thing to do, not just the legally wise thing to do.”

Organizations should have the following in place:

•a written policy;

•training and education programs that reach everyone in the organization and are updated bi-annually or annually;

•a confidential and well-communicated reporting mechanism; and

•follow-through and enforcement on policy.

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