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Posts tagged: sexual harassment

Top 10 Employment Law Developments in 2017

By , December 4, 2017 1:43 pm

In 2017, the provincial legislature and Ontario judges continued to change Ontario’s employment laws. These changes resulted in higher payroll costs and a more regulated workplace. This blog briefly identifies 10 employment law developments from the past year.

1.Changes to the Employment Standards Act. Many changes were made to this law in November. Most of these changes take effect on January 1, 2018 which doesn’t give employers much time to change existing practices and policies. We offer a fixed fee service for employers who need help complying with these changes.

2.Ministry of Labour inspectors are visiting more Ontario workplaces. In the past, most inspections were the result of an employee complaint. Now the MOL is getting more proactive. For the last several years, the MOL has initiated strategic inspection blitzes. In 2017 the MOL announced it is hiring 175 additional ESA enforcement officers. This means your organization is much more likely to be inspected for compliance with Ontario’s employment laws including the many changes to the ESA that take effect January 1, 2018.

3. Accommodating employees with mental disabilities may be the fastest growing area of human rights law.  We recently devoted ⅓ of our employment law conference to this topic. It seems as if more and more employees are debilitated by depression and anxiety, and often an employee’s interaction with their supervisor triggers a mental disability. It is a complex area fraught with legal uncertainty. The duty to inquire about a person’s health when there are objective signs that the person may have a mental disability is one such issue.

4. Damages for employee terminations are going up. In the past, the sole issue in most wrongful dismissal cases was how much pay the employer owes the employee in lieu of the notice of termination that the employee should have received.  Now employees routinely seek several kinds of additional damages. A 2017 decision considered the termination of a 44-year-old female supervisor with 9 years’ service shortly after filing a sexual harassment complaint. The trial judge awarded her 10 months pay in lieu of reasonable notice, $ 60 000 in moral damages because of the way she was terminated, $ 25 000 for the way the employer handled her human rights complaint,  interest, and about $ 425 000 in legal fees. The Court of Appeal increased the damage award. In another case, a trial judge awarded a terminated employee, among other damages,  $ 100 000 for the intentional infliction of mental stress and the tort of harassment which I believe was recognized as a legal cause of action in the employment context for the first time.  

5. Termination clauses in employment contracts continue to be successfully attacked. We have written several blogs on this issue. Some judges are refusing to enforce termination clauses whereas others do, so there is considerable legal uncertainty in this area. I’m hoping the Supreme Court of Canada will provide some guidance in this area. In the meantime, we suggest that employment contracts be reviewed periodically – especially termination clauses.We provide this service for a fixed fee

6. Changes to AODA. The Employment Standards under the Accessibility for Ontarians with Disabilities Act came into effect for all employers in 2017. Did you know this law imposes 9 new obligations  on all employees, and 2 additional obligations on organizations with more than 50 employees? Also, did you know that organizations with more than 20 employees must file a report with the government by December 31, 2017? We offer a fixed fee service  for employers who need help complying with these obligations.

7. Sexual harassment. The Harvey Weinstein story shone a light on this issue – again. Changes to Ontario’s health and safety law in late 2016 amended the definition of “workplace harassment” to include sexual harassment. Employees now have the right to have complaints investigated by a trained person, and be told the outcome of the investigation and whether the alleged harasser was disciplined. We offer a fixed fee service for employers who have not complied with the new obligations imposed on employers including the obligation to implement a written workplace harassment investigation procedure.

8. Pregnancy and parental leave extended to 18 months. The federal government and provincial government have amended laws to make this happen. As written about in our blog, now employees can take 12 months EI benefits over an 18 month period. 

9. Drug testing. The federal government plans to regulate the sale of marijuana and it won’t be limited to people who need it for medical purposes. Recently some judges have found that drug testing is permitted in certain circumstances. I predict that more and more employers will be implementing drug and alcohol policies in 2018.

10. Employee bonuses. Is an employee entitled to the bonus they would have earned if they had received notice of termination? This often turns on how to  interpret the term “actively employed”. The Alberta Court of Appeal and Ontario Court of Appeal seem to be taking a different approach to this issue. Accordingly, it looks like the Supreme Court of Canada will have to decide this issue. In the meantime, we suggest that bonus clauses in employment contracts be updated.

For 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm. 

#Metoo #Himtoo #Youtoo – Sexual Harassment and Violence at Work

By , October 31, 2017 5:15 pm

In the wake of sexual harassment allegations against movie mogul Harvey Weinstein, the viral social media campaign #metoo has emerged as a way for millions of people to denounce sexual assault and harassment. Although it is an important campaign, I have been late to add my voice to the #metoo discussion because of the disproportionate focus on the stories women have shared. Many seem to suggest that there is an obligation on women to share their experiences in order to make change. But recounting these events over and over again can re-traumatize someone who has been through harassment and assault. What’s more, the majority of women are not surprised by the #metoo stories – as upsetting as they are. Women have been sharing experiences and naming men for years privately, and even publicly. But, what needs to happen for there to be a positive culture shift?

Here are my suggestions for how to reduce sexual harassment and violence in the workplace – a place where much sexual harassment still occurs:

  1. Employers can create a culture of no tolerance for harassment and violence. But this ethos must start at the top. Employers should have policies against harassment, including sexual harassment and violence in the workplace. This is a very basic first step to setting the culture. It is also required under the Occupational Health and Safety Act (“OHSA”) for employers with more than five employees.
  1. Promptly respond to every sexual harassment complaint. Do not let anyone brush it off, excuse the behaviour, or consider it a “harmless joke”. Adequately investigating such a complaint is required under OHSA and the Human Rights Code (“Code”). Treat the complaint as truthful and made in good faith. Take complaints seriously – whether the complaint is about crude jokes or sexual assault. “Locker room talk” is not permissible in Ontario workplaces. These factors will be considered by judges and tribunal members whether assessing whether a complaint was investigated properly. It also creates a workplace climate where employees feel they can share their stories.
  1. Investigate all incidents as well as complaints. Do not wait for an employee to come forward to investigate sexual harassment. It is mandatory under OHSA to investigate any incident that comes to the employer’s attention. Remember: A formal complaint is not needed. Learning of incidents of sexual harassment or violence but not investigating them is a violation of OHSA. Allowing the behaviour to continue unchecked also creates a culture of tolerance for this behaviour. Waiting for a woman to share her story before intervening puts the pressure on the woman to create change.
  1. Men need to call out other men when they are engaging in belittling, harassing, or abusive acts against women. An employer can be liable for a poisoned work environment if there is a culture of sexualized joking even if it is not targeted at a particular individual.
  1. Do not punish someone for coming forward. Even if you investigate and cannot substantiate the allegations, this does not mean it did not occur. Punishing someone for making a harassment complaint is generally considered a reprisal and can result in reinstatement and back pay under both the Code and OHSA.
  1. Show respect to women. This includes equal pay for equal work, and fair merit- based promotions. In some contexts, this is required by law through the Code, the Employment Standards Act, and the Pay Equity Act. It also creates a workplace that values women and will diminish sex-based discrimination or harassment.
  1. Stop language that diminishes women such as names like “honey”, “babe”, “dear”, or “girl”. This is subtle sex-based discrimination and elevates lowers their status.
  1. As individuals, rethink flirting, compliments, or seeking romantic relationships at work. Legally, before acting, you need to be certain that advances, comments and conduct is consented to and wanted by a co-worker; otherwise, it can be sexual harassment. Definitely, do not make sexual advances to a subordinate. If you have power over a person’s job, pay, duties etc. it is difficult to decipher whether consent is truly given. Repeated advances made to a peer (as opposed to a subordinate), even where there are not sexual or gender-based, can affect a person’s dignity and sense of value as an employee. As an individual, you could be found personally liable under the Code for sex- based discrimination, sexual harassment, or sexual solicitation. As an employer, you can be vicariously liable for your employee’s conduct if you knew about it and did nothing.

If you would like to discuss these suggestions, please contact me at [email protected] or 647-633-9894.

 

Why Asking Your Employee to “Go Clubbing” Could Cost You

By , September 19, 2017 11:36 am

Most employers understand that sexual harassment at work is against the law. Despite this, sexual harassment is still pervasive in Ontario workplaces. Where managers and employers can get into trouble is the area of sexual solicitation.

The Human Rights Code states that employees have the right to be free from advances in the workplace from those able to offer or deny a benefit –  i.e. sexual propositions from a boss with the offer of a promotion are not permissible.  This is true where the person making the proposition knows or should know that it is not welcome.

Examples of this type of behaviour – and the real consequences of it – are evident in Anderson v. Law Help ltd.

The Case

Safari Anderson started working for Law Help Ltd. as a paralegal.  After some time, her boss starting asking her about her plans outside of work.  He started with inquiring about what she was doing on Saturday night.  He later asked her if she wanted to “go clubbing” with him.  He asked whether she would like to “hang out” on the weekend or “go away together” for the weekend. He told her he was thinking about her and that liked her. He told Ms. Anderson he would take care of her, implying that if she spent time with him, she would advance at work.

Mr. Giuseppe then punished Ms. Anderson for not going out with him outside of work.  He stopped paying her. He treated her in a hostile manner. He yelled at her and refused to let her attend a medical appointment. Ms. Anderson ultimately had to resign.

The Human Rights Tribunal of Ontario reviewed all of the evidence and found that Mr. Giuseppe’s advances breached the Code. It reiterated that persistent propositions can create a negative psychological and emotional work environment. While the language used by her boss, Giuseppe Alessandro, was not overtly sexualized, it was not allowed under the Code.

The Tribunal ordered Law Help Ltd. and Mr. Giuseppe to pay Ms. Anderson $22,000 for the injury to her dignity along with lost wages she incurred after quitting.

Lessons

As an employer or manager, asking out a colleague or employee can be expensive, and not because of the cost of the date.  Even where there are not sexual or gender-based comments, repeated advances of this nature are not allowed in Ontario’s workplaces.  They can affect people’s dignity and sense of value in their jobs. Manager and employers must be extremely careful when engaging co-workers or subordinates in any form of romantic or sexual relationship.

For more information about sexual harassment in the workplace, please see here and here.

If you have concerns about your employee’s behaviour and would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected]  or 647-204-8107.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Damages for Reprisal under Occupational Health and Safety Act

By , January 20, 2017 2:25 pm

It should be common knowledge that changes were made to the Occupational Health and Safety Act (“the OHSA”) that have been in effect since September 8, 2016 (and if it’s not common knowledge, you haven’t been reading our previous blogs on the subject). One of these changes allows employees who have been sexually harassed at work to file a complaint under the OHSA.

Prior to September 8, 2016, an employee’s only recourse to address sexual harassment at work was to file an application at the Human Rights Tribunal of Ontario. Now employees may choose where to bring their complaint. Because of how recent the changes to the OHSA are, there are no reported cases where an employee has been terminated in connection with a workplace sexual harassment complaint. However, the example below still illustrates the consequences an employer may face if it terminates an employee for making a sexual harassment complaint.

Facts

In Thompson v 580062 Ontario Inc., a restaurant employed Ms. Thompson as a night manager. Ms. Thompson accused the restaurant owner of calling her rude names and making profane statements on November 8, 2014. Ms. Thompson also accused the owner of grabbing her and pushing her toward the door. Ms. Thompson reported the incident to her manager on the same evening.

Two days later, Ms. Thompson attended the restaurant to check her work schedule and found she was not scheduled to work. The manager told Ms. Thompson that the owner had requested that she not be scheduled. Ms. Thompson then reported the incidents of November 8, 2014 to the Ministry of Labour.

On November 18, 2014, Ms. Thompson sent the owner an email complaining of workplace harassment and violence, and requested a copy of the restaurant’s workplace violence and harassment policies. On November 21, 2014, the owner advised Ms. Thompson that the Ministry of Labour had commenced an inspection under the OHSA. The owner never provided the requested policies to Ms. Thompson, and she was never scheduled to work again despite repeated requests.

Decision

As mentioned above, the OHSA has provisions on workplace harassment, workplace violence and the duties of employers to protect workers and prepare policies with respect to workplace harassment and violence.

The OHSA also has reprisal provisions that prohibit employers are also prohibited from dismissing, disciplining, imposing a penalty upon a worker or intimidating a worker because they have sought enforcement of the OHSA. In order for there to be a breach of these reprisal provisions, there must be the exercise of rights by a worker, a prohibited action on the part of the employer and a causal connection between the two.

The adjudicator was satisfied that at least part of the employer’s reason for ceasing to schedule Ms. Thompson was connected to the fact that she raised health and safety issues in the workplace.

Damages awarded

The remedy for a reprisal is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement. Depending on how backlogged the Ontario Labour Relations Board is, those wages could add up.

If the employee does not wish to return to work for the employer, which will usually be the case where the employee has complained of workplace violence or harassment (including sexual harassment), the complainant is entitled to damages for loss of employment in lieu of reinstatement. These kinds of damages are meant to compensate for the loss of the job itself. Additionally, employees are also entitled to damages for loss of wages (i.e. to compensate for the wage loss experienced as a result of the termination, subject to the duty to mitigate). Despite the clear overlap between these two kinds of damages, adjudicators have been known to award both kinds of damages, which could lead to a steep award. In one case, a two-year employee was awarded 8 months’ pay.

Lessons to be learned

  1. Make sure you have a written policy to investigate workplace harassment complaints, which has been a requirement under the OHSA since September 8, 2016. For information about our fixed fee service, click here.
  2. Investigate all workplace harassment complaints promptly.
  3. If an employee raises health and safety concerns, be very careful about taking any disciplinary action, even if the decision to discipline the employee in question precedes the employee’s concerns.

The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Investigating Workplace Harassment Complaints: Get Ready for Changes to the OHSA

By , July 26, 2016 7:20 am

“Bob is harassing me.”

Your spidey senses should be tingling. Because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American games complained about David Peterson and her complaint was allegedly not taken seriously.

Immediately after you are told about Bob the alleged harasser you should determine whether the person is alleging workplace harassment.

Under the Ontario Human Rights Code (the “Code”) harassment on any of the 16 prohibited grounds (like sex and race) is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

Effective September 8, 2016, workplace harassment under the Occupational Health and Safety Act (the “OHSA”) will be defined as (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.

An employee who has been harassed within the meaning of the Code can obtain damages from her employer from the Ontario Human Rights Tribunal or from the Ontario Courts. An employee who complains he has been harassed under the OHSA cannot claim damages.

Sexual Harassment: A Special Kind of Harassment

For reasons that I do not understand, the Ontario government has decreed that effective September 8, 2016 an employee who has been sexually harassed at work can file a complaint under the Code or under OHSA. Accordingly, an employee who has been sexually harassed will thereafter be able to commence legal proceedings in at least 3 legal fora; namely;

1. An application under the Code

The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. In a 2015 decision an adjudicator under the Code awarded a former employee who had been sexually harassed $ 150 000 in general damages.

2. A complaint under the OHSA

An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The only obligation is to investigate and report back to the person.

3. An action in Ontario’s Superior Court

An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision a judge awarded a former employee over $ 300 000 damages in connection with sexual harassment/assault in the workplace.

Lessons to Be learned

1. Make sure you have a written policy to investigate workplace harassment complaints in place by September 8, 2016. For information about our fixed fee service, click here.

2. Sexual harassment complaints can be more legally complicated than other kinds of harassment complaints.

3. Investigate all workplace harassment complaints quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties, etc. Not all investigations need to be treated the same.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

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