Keeping a harasser away

What to do in the aftermath of a harassment complaint

Question: If an employee is found to have harassed another employee, is there a legal requirement to keep them apart? If they continue to work together is their consent necessary?

Answer: Whether a co-worker should be separated from the victim of harassment depends on a variety of factors and will largely depend on the circumstances of a given case. As will be discussed below, there is no single measure an employer must use in addressing such conduct. Rather, an employer’s best mechanism in dealing with workplace harassment is a solid harassment policy that is effectively communicated and consistently enforced.

Employers have both a common law and statutory obligation to ensure employees are not subject to harassment, abuse, or mistreatment in the workplace. Employers are therefore responsible to take all necessary steps in order to prevent the recurrence of workplace harassment and to enhance the work environment, as established by the Supreme Court of Canada in Robichaud v. Brennan. Where allegations of workplace harassment are made, employers are well advised to ensure they have taken complaints seriously and have conducted proper investigations.

Workplace harassment is considered an occupational health and safety issue that poses a potential risk to the physical and mental health and safety of employees. While Occupational Health and Safety (OHS) legislation varies from jurisdiction to jurisdiction, the common thread is that an employer has a duty to take reasonable steps to ensure the safety and wellbeing of employees. What constitutes reasonable steps will depend on the relevant jurisdiction and the nature of the harassment. The legislative duty imposed on employers to take every reasonable precaution to protect workers comes down to a proper workplace harassment policy. These steps are generally not outlined in the legislation. This is because legislators and the courts recognize that necessary steps will vary depending on a given situation and workplace.

In Ontario, employers are mandated to develop and maintain a workplace harassment policy and review the harassment policy on an annual basis. Employers must have a program in place to ensure a policy is properly implemented. The harassment program serves both a procedural and educational purpose. Harassment programs must set out the measures and procedures for workers to report incidents of harassment, describe how the employer will investigate incidents of harassment, and provide opportunities for workers to learn the contents of the policy and the program itself.

In Saskatchewan, employers have two principal responsibilities when it comes to preventing harassment in the workplace. The first measure is to develop and implement a written harassment policy that conforms with the requirements of the regulations. Second, employers must ensure, as much as is reasonably practicable, that the employees are not exposed to harassment with respect to any matter or circumstance arising out of the worker’s employment. What will constitute a “reasonably practicable” measure will consider whether there is a “gross disproportion” between the benefit of the duty with the cost, time, and trouble of the measures to secure the duty.

It is clear that the reasonableness requirement will vary depending on a given situation. Thus, where an incident is relatively minor, it may not be reasonably practicable that the employee can be kept separate from the wrongdoer, depending on the size of the workforce, the nature of the work, and any potential risks to other employees.

While harassment policy requirements will differ from province to province, it is possible to elicit certain common features in Canada’s OHS legislation. Workplace policies must be clearly communicated to management and employees. Employers should provide harassment prevention training to management and employees. Policies should set out what does and what does not constitute harassment. Mechanisms for addressing workplace harassment and sanctions should be clearly set out. The policy should inform employees of their rights and how to raise issue of harassment.

Finally, employers have an obligation to act promptly to stop harassment and to prevent it from recurring. This is key in ensuring that harassment policies are properly enforced and implemented. While it may be unreasonable to separate the harasser from the victim, employers must be careful to monitor the situation. Firstly, an employer’s obligation to take necessary steps to prevent the recurrence of harassment is an ongoing duty. Secondly, employers should be alert to the potential of reprisals against victims who came forward with the complaint. Thirdly, if the harassment continues or escalates to the point where an employee feels compelled to resign from her position, the employee’s resignation could be treated as constructive dismissal entitling the employee to common law damages.

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected]

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