Managing the workplace when both are still with the company
Question: Is an employer required to fire an employee who harassed another employee to the point the harassed worker says she can’t work in the same office as the harasser? We have moved the harasser to another department but he’s still in the same office as we have no other locations.
Answer: Employers are required to provide a work environment free from harassment. No employee should be required to work in an environment of hostility, embarrassment or humiliation. Courts have held that a “fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity” and “the standard that has to be adhered to by the employer is dependent upon the particular work environment.”
Courts must consider what is objectively reasonable in a given work environment. However, the standard placed on employers with respect to the prevention of and response to incidents of harassment is high. Courts and tribunals will take the actions, policies and procedures of an employer into account when assessing whether the employer has met that standard. In addition, there is legislation which deals with harassment in the workplace. Close attention should be paid to statutes dealing with occupational health and safety and human rights to ensure the actions taken are in line with the statutory requirements.
If a harassed employee makes a complaint, the policies in place at the time and the provision of a quick and effective response will have a significant impact on the damages awarded against the employer.
There is also a danger the harassed employee will feel forced to leave the workplace due to an inability to perform her duties as result of the harassment. A suit for constructive dismissal could follow and the employer may be forced to defend its actions in dealing with the harassment in the first place. It has been held that finding an employee has been constructively dismissed is not dependent upon the identification of a specific fundamental term that has been breached. Rather, it may be found in cases where the employee’s treatment makes the continued employment intolerable. To this end, the employer will open itself up to liability on several fronts if the bullying or harassment is not properly or adequately addressed. This could be true even in cases where the harassment comes from a co-worker rather than a superior.
To avoid liability, employers should be as proactive as possible in trying to prevent incidents of harassment. Strong policies against workplace bulling and harassment should be implemented and uniformly enforced. If these policies clearly set out the types of behaviour that will not be tolerated in the workplace and the expectations of the employer in this regard, it will strengthen the employer’s ability to employ disciplinary sanctions, including termination, in some cases.
Reporting and investigation procedures should also be implemented. Employees should feel that they are able to approach a superior when an incident of harassment occurs and a prompt, thorough and impartial investigation should ensue. Particular attention to the safety of the complainant, if violence is an issue, should be paid in the interim. Swift and effective action should be taken once the investigation is complete. If the harassment persists, then it must be determined whether the harassed employee can reasonably be expected to continue her employment under the circumstances. If the answer is no, then further action against the abusive employee may well be required, possibly even termination. But that employee will also have rights which need to be considered and any termination may be challenged. Summary dismissal will require the employer to prove the harassment was sufficiently egregious so as to amount to just cause. If reasonable measures short of terminating the harassing employee can be implemented to allow the complainant to work in an environment free from harassment, they should be taken. The complainant must also act reasonably in relation to her workplace demands and behaviour.
Courts will not tolerate workplace bullying or harassment or employers who condone it. Employers are obligated to provide a harassment free work environment. If an employer is successful in providing this environment, it will protect them from liability. It also creates a more positive and productive workplace overall.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].
