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Posts tagged: sexual harassment

Workplace Investigations under the Occupational Health and Safety Act

By , December 11, 2018 10:17 am

The Occupational Health and Safety Act (OHSA) imposes several obligations on employers to investigate complaints of workplace harassment.  

When there is an incident or complaint of workplace harassment, OHSA requires the employer to conduct an investigation that is appropriate in the circumstances. An employer has a legal obligation to make the workplace safe so if there is any indication of behaviour that would make the workplace unsafe, the employer must address it. The investigation must be conducted by someone who has received information and instructions on how to conduct an investigation.

The OHSA requires that complaints of workplace violence or harassment, whether formal or informal, must be investigated. To reduce legal exposure and save costs, employers should ensure that at least one employee receives workplace investigation training.

When should an employer conduct an investigation?

Workplace harassment occurs when a person engages in a course of vexatious comment or conduct against a worker in a workplace which is known or ought reasonably to be known to be unwelcome. The definition of workplace harassment also includes sexual harassment.

Examples of workplace harassment include spreading malicious rumours or gossip, excluding or isolating someone socially, physically abusing or threatening abuse, making offensive comments or jokes, yelling or using profanity, constantly criticising a person, belittling a person’s opinions or displaying or circulating offensive pictures or materials.

Two of the most common examples of workplace harassment are bullying and sexual harassment.

Example 1: Bullying

A group of employees deliberately spread malicious rumours about a colleague’s personal life and make belittling comments about her physical disability. The employee does not file a formal complaint but her supervisor witnesses her colleagues engaging in this conduct.

Example 2: Sexual Harassment

An employee is subject to repeated jokes and comments about his sexual orientation. He files a complaint with his human resources representative.

What are an employer’s obligations in these circumstances?

Under OHSA, the duty to investigate will be triggered by “incidents” of workplace harassment, even if there is no formal complaint. The Code of Practice produced by the Ministry of Labour suggests that the obligation arises whenever a supervisor becomes aware of an incident, even if the supervisor fails to pass that information on to the employer.  When the employer becomes aware of an incident of harassment, a trained investigator must complete an investigation and provide the employer with a written report of the results of the investigation.

Consequences of a failure to investigate?

Failure to investigate or appointing an untrained investigator could result in the Ministry of Labour ordering the employer to hire an external investigator at the employer’s expense. External investigators are typically very costly. Further, despite their high fees, there is currently a shortage of workplace investigators.

Failing to conduct a proper internal investigation could not only have consequences under OHSA, but could also lead to costly consequences at both the Human Rights Tribunal of Ontario and the Courts.

If an employer does not have an internal investigation procedure then an employee is much more likely to file a complaint with the Ontario Human Rights Tribunal where an employer can be ordered to pay damages for failing to conduct an adequate investigation. Courts have also ordered employers to pay punitive damages for conducting faulty investigations.

Workplace investigations training

On Thursday February 14, 2019 we will be hosting a Workplace Investigation Training Session. This session will be moderated by  Monica Jeffrey of JMJ Workplace Investigation Law LLP. The cost is $399 plus H.S.T. for the day. Registration is limited. If you are interested in attending please contact us at 647) 204-8107 or at [email protected]

Not Preventing Sexual Assault and Harassment in the Workplace is Now More Expensive

By , June 22, 2018 11:16 am

On average, damages awarded to an employee for a breach of the Human Rights Code, remain relatively low, typically $10,000 to $15,000. However, the HRTO recently released two significant decisions that reflect a willingness to award higher amounts. Both decisions involve sexual assault and sexual harassment against women in vulnerable circumstances.

In both cases, the owners of the companies were found to be personally liable along with the corporations.

The Cases

In A.B. v. Joe Singer Shoes Limited et al, 2018 HRTO 107, the employee worked for Joe Singer for 28 years. The allegations made by A.B. were of atrocious conduct. She stated that she was forced to perform oral sex, intercourse, and degrading sexual conduct. She accused her employer of watching pornography in his office. Her employer also criticized her skin colour, accent, and body. Although she had issues with her memory in her testimony, the HRTO still preferred her evidence, and found company and the owner both responsible for the sexual assault and sexual harassment. The HRTO ordered the respondents to pay $200,000 as compensation for injury to dignity, feelings, and self-respect.

Following Joe Singer, the HRTO released G.M. v. X Tattoo Parlour, 2018 HRTO 201. In X Tattoo, the applicant was a 15-year-old woman whose employer engaged in unwanted sexual discussion and forced the applicant to engage in sex acts. Looking to the Joe Singer decision, the HRTO awarded $75,000 in general damages (the maximum that the applicant had requested).

Lessons

Most employers would hope and believe that their staff and management would not engage in the conduct seen in Joe Singer and X Tattoo. However, the bar for the maximum damage awards has increased. We can expect that the average award level will also increase.

Employers need to ensure:

  1. that they create a workplace culture of no tolerance for harassment and violence. This includes having the appropriate policies and training in place;
  2. that they respond promptly to every sexual harassment complaint and investigate all complaints as well as incidents; and
  3. that those who come forward do not face punishment or reprisal for doing so.

For over 30 years, MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions about dealing with sexual assault or sexual harassment complaints and allegations and would like to discuss them with a lawyer, please contact me at [email protected] or 647-633-9894.

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.

 

Patrick Brown: Could the Alleged Sexual Harassment/Assaults Have Been Prevented?

By , January 25, 2018 5:04 pm

Yesterday, CTV reported that two women alleged Ontario Progressive Conservative leader Patrick Brown sexually harassed and/or sexually assaulted them. Shortly after the story broke Mr. Brown resigned as party leader.

I don’t think Mr. Brown will deny he met either women. Instead I think he will claim that whatever happened was consensual.  In other words, classic “he said, she said” situations. If criminal charges are laid against Mr. Brown then the Crown will need prove the charges beyond a reasonable doubt. The same burden of proof as in the Jian Ghomeshi case.

This blog considers whether either situation could have been avoided from an employment law perspective.

If the federal government had addressed sexual harassment and sexual assault in the federal civil service and the House of Commons prior to 2013, then I think the 2013 incident could have been prevented. The Prime Minister could have stood up in the House of Commons and said the federal government is going to take a leadership role on this issue and take proactive steps to redress this societal problem. First, by saying it won’t be tolerated; second, by requiring all employees and MPs to comply with a sexual harassment policy; and third, by introducing a complaint procedure and encouraging employees to use it. This would have put MPs on notice of the cultural change the government was committed to leading and would have made all MPs think twice about sexually harassing staff. It would also communicate a very strong message to staff that the employer wanted people to bring forward sexual harassment complaints. In this climate, I think Mr. Brown would have thought twice before allegedly bringing a staff member back to his home or into his bedroom.

I don’t think the incident that took place over 10 years ago could have been prevented through workplace policies. According to the CTV report, the 17 year old female high school student did not appear to have any connection to Mr. Brown’s workplace and they do not appear to have met at a workplace event.

Given the societal change that has taken place in connection with sexual harassment and sexual assault over the last 5 years I do not believe nearly as many employees or politicians will put themselves in compromising situations in the future. The adverse consequences associated with sexual harassment and sexual assault allegations in 2018 is staggering.  Without these allegations, polls show Mr. Brown would have been premier of Canada’s largest province in June.

For over 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.

 

Sexual Assault and Sexual Harassment At Work

By , January 25, 2018 4:30 pm

In the wake of workplace sexual assault allegations against Patrick Brown, I continue to reiterate what employers of any kind can do to try and prevent and discourage sexual harassment and sexual assault at work.

Given the context of the recent allegations, the first point appears particularly important.

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 no explicitly sexual or gender-based comments are made, can affect a person’s dignity and sense of value as an employee. As an individual, you could be found personally liable under the Human Rights Code (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. 

2. 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.

3. 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 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

 

For over 30 years, MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions and would like to discuss them with a lawyer, please contact me at [email protected] or 647-633-9894.

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.

 

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. 

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