Keeping a harasser and harassed apart at work

What to do after a harasser is disciplined but works alongside the harassed employee

Stuart Rudner
Question: An employee filed a harassment complaint against a co-worker. The offending employee was disciplined according to company policy but the employee who filed the complaint is uncomfortable working with the disciplined employee. Are we required to accommodate by re-assigning one of them to another department? What if they aren't qualified to work anywhere else within the company?

Answer: It is commendable that you have dealt with the harassment complaint and imposed discipline upon the harasser in question. However, although the organization may consider the matter to be over, that may not be the end of its obligations. Although it is probably reassuring to the victim to know the offender has been punished, that does not mean she should be forced to work with or near that individual on a daily basis. In many if not most cases, you cannot undo the harm that has been done simply by disciplining the offender.

Without knowing more about the specific details of the harassment that took place, it is difficult to respond definitely to your question. However, hopefully some general commentary will be of assistance to you and others facing this type of situation.

As most are aware, there is a duty on an employer to address any allegations of harassment and, if it is proven to be well-founded, remedy the situation. You have gone a long way toward doing so. However, it is arguable if the employee who was harassed continues to be uncomfortable, which would be understandable where the harassment was significant and she continues to see the offender on a regular basis, then the situation has not been completely remedied.

Cases that have dealt with bullying and psychological harassment have confirmed the employer’s duty to make efforts to provide a safe place of employment where employees are treated with civility, decency, dignity and respect. In essence, the courts have applied the doctrine of constructive dismissal to situations where the conduct of the employer renders continued employment intolerable.

This is somewhat of an extension of the doctrine, which generally applies to situations where the employer unilaterally changes a fundamental term of the employment agreement. The rationale, generally speaking, is there is an implied term in every employment agreement that precludes an environment so hostile or oppressive the employee cannot be expected to tolerate it.

In 2002, the Ontario Superior Court in Stamos v. Annuity Research & Marketing Service Ltd., confirmed the employer had a duty to protect an employee from a volatile and intimidating co-worker. The employer’s failure to do so was deemed to be a constructive dismissal. In that case, Justice Michael Dambrot held it did not matter whether one considered these issues in the context of an implied duty or simply as a repudiation of the employment agreement in its entirety. Either way, the employer’s failure to provide a suitable environment can be constructive dismissal.

The court in Stamos referenced an earlier decision of the Ontario General Division (now Superior Court) in Robinson v. Royal Canadian Mint, where the court held employers have a duty to “see that the work atmosphere is conducive to the well being of its employees.” A failure to prevent harassment of one employee by another can be constructive dismissal.

The Stamos case is instructive because it dealt with the behaviour of a co-worker, as opposed to a person in a position of authority. However, the court found there was a definite failure on the part of the employer to discipline the offending employee or otherwise bring an end to the harassing behaviour. That is different from the situation described by our reader. Nevertheless, I would suggest the duty to provide a proper work environment may require that you need to go further than simply imposing discipline upon the offender.

The victim must be accommodated in order to allow her to continue to work in a safe environment. From a business perspective, this is likely to result in a more productive employee and benefit the organization as a whole.

Stuart Rudner is a partner who ­practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.

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