Employer must assess how a reasonable person would see the remark
Question: A department manager made a false statement about an employee with regard to his behaviour. The employee is now feeling harassed because of the false statement. What are the company’s responsibilities to the manager and the subordinate employee, especially if the employee feels he has to resign to get away from the unfair situation?
Answer: In a number of Canadian jurisdictions, the definition of what constitutes harassment has been changing. For example, in Saskatchewan the definition has recently been expanded to include what is commonly understood to be workplace “bullying,” or psychological harassment. As a result of the expanded definition, a broader range of false statement, comments and actions can now fall within the ambit of prohibited workplace harassment.
Saskatchewan’s Occupational Health and Safety Act, 1993, (OHSA) defines “harassment,” which includes:
•Protected class. Inappropriate false statement, comment, display action or gesture by a person which is based on the traditional protected classes such as race, religion, colour, sex and sexual orientation.
•Employee’s psychological or physical well-being. Inappropriate false statement, comment, display action or gesture by a person that has an adverse impact on the employee’s psychological or physical well-being where the person guilty of the false statement knows or ought to have known the false statement would cause the employee to be humiliated or intimidated.
•Threat to employee’s health or safety. Inappropriate false statement, comment, display action or gesture by a person which constitutes a threat to the health or safety of the employee.
It is clear harassment embodies a large array of false statements. It is not necessarily limited or confined to specific acts.
In determining whether or not an individual’s false statement, comment, display action or gesture constitutes harassment, the actions must be viewed both objectively and subjectively in context of the culture of the workplace. In other words, it takes into account the effect of the false statement on the victim — such as stress or anxiety — as well as an objective assessment of the false statement. The effect on the victim is a very important factor which is given a significant amount of weight in this determination.
It is important to note that an individual’s intention is not a factor considered in the determination of the existence of harassment. In Ontario (Human Rights Commission) v. Simpsons-Sears, the Supreme Court of Canada concluded intention was not a necessary element of discrimination. It is not necessary that the individual intended to harass another individual in order to find harassment.
The duties of employers
Under the OHSA, employers have an obligation to ensure the workplace is free from harassment. The OHSA states “every employer shall ensure, insofar as is reasonably practicable, that the employer’s workers are not exposed to harassment with respect to any matter or circumstance arising out of the workers’ employment.”
In order for an employer to fulfil its duty under the OHSA, it must implement a sound and effective workplace harassment policy. In developing and implementing policies to maintain a work environment free from harassment, the employer needs to take proactive steps to prevent harassment or mitigate its effects in the workplace. Three essential features of a workplace harassment policy include the following.
First, it should include a general statement from the employer with respect to a commitment to a harassment-free workplace.
Second, the policy should include a definition of harassment. Typically, any definition of harassment includes the definition contained in the OHSA as well as a list of specific actions which will be considered as harassment by the employer.
Lastly, the policy should include a discussion of how harassment will be dealt with by both employee and employer.
As mentioned above, in determining whether or not harassment has occurred, the law requires both a subjective and an objective assessment. It is certainly possible a false statement concerning an employee's behaviour could constitute prohibited workplace harassment. It is important to examine the impact of the false statement on the complainant and to determine what implications have arisen as a consequence. The complainant's subjective personal response to the false statement needs to be considered.
If the false statement was scandalous or embarrassing in nature, it will be important to recognize that. Further, if any of it was communicated broadly throughout the organization, there is a greater impact upon the complainant.
In addition to the subjective analysis, one also needs to review on an objective level whether a reasonable person in the position of the complainant would feel the false statement was harassing in nature. In this way, one can review the false statement and its consequences without being overly influenced by possible heightened sensitivities on the part of the specific individual complainant.
In terms of the employer's responsibilities, it should be guided by the existing harassment policy, if there is one in place. The basic requirements should include conducting a fair and thorough investigation of the complaint. An employer might want to consider using an external investigator for this purpose. Even if the investigation is conducted internally, it should be fair, unbiased and detailed. If suitable arrangements can be made to remedy the consequences of the false statement, they should be undertaken.
In addition, if arrangements can be made to separate the complainant from the harasser, such steps may be a reasonable response. In some circumstances, however, a poisoned work environment can constitute constructive dismissal. Based on the limited information available here, it is difficult to assess whether such an approach would be reasonable in all of the circumstances. It is important to recognize employees have a duty to mitigate, even in circumstances of constructive dismissal and this may require remaining with the existing employer unless there are valid and sufficient grounds to warrant the employee leaving her job.
Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny @mlt.com.