Employer liability and jurisdiction
Question: If an employer dismisses an employee for harassing another employee but the harassment continues outside of work, can the employer be liable in any way? What should be done to avoid liability in such circumstances?
Answer: As the issue of workplace harassment has gained more notoriety, there has been significant public and media attention, which has resulted in legislative changes and judicial commentary. The bottom line is that in modern society, and particularly in light of the prevalence of social media, the “workplace” is no longer limited to what happens within the four walls of the office or building. Rather, it has been broadly defined to include interactions that are related to work. Just like the schoolyard bully cannot escape penalty by waiting for his victim on the sidewalk outside the school fence, the workplace harasser cannot avoid discipline by keeping her harassment outside of the building in which she works.
Obviously, it will be far more difficult for an employer to govern what takes place outside of working hours. However, if it becomes aware, or ought to have been aware, of harassment that is taking place between two or more of its employees, it will have a duty to respond and take whatever steps are reasonable to address the harassment. An employer that raises its hands and proclaims that it cannot do anything about the conduct, because it has not taken place in the office, will not receive a favorable response.
By now, all employers should have policies which specifically address harassment. In Ontario, legislation — including Bill 132 which will come into force in September — requires specific elements in those policies. All such policies should make it clear that they are not limited to the physical workplace, and apply to any conduct that is work-related, or can impact upon the workplace, or involves two or more employees. This includes online and social media conduct. And as soon as the employer learns of any concern, it must take action. An investigation will be necessary, following which the employer can determine an appropriate course of action. Failing to investigate will be a critical mistake, as many employers have seen in recent years. The CBC is, unfortunately, a perfect example of this. Many of the allegations involving Jian Ghomeshi related to conduct that took place away from the physical workplace, but that does not change the fact that it can constitute workplace harassment.
