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Posts tagged: workplace 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]

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.

 

Employer Alert: Change to WSIA as of January 1, 2018

By , January 15, 2018 11:23 pm

As of January 1, 2018, an employee can claim workers compensation benefits for chronic or traumatic mental stress that is predominantly caused by workplace harassment

In May 2014 I blogged about an administrative tribunal case which concluded that subsections 13 (4) and (5) of the Workplace Safety and Insurance Act (WSIA) were unconstitutional.

January 1, 2018 Change to WSIA

On January 1, 2018 – almost 4 years later – these subsections were repealed and they were substituted with the  following:

(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Implications of the Administrative Tribunal Case and the Change to WSIA

As mentioned in my earlier blog, as a result of the administrative tribunal case and the subsequent change to WSIA I believe (i) Employees may start filing workers compensation claims instead of filing for Employment Insurance sickness benefits; and (ii) Employees with chronic or traumatic stress may start asking to return to jobs other than their pre-injury job.

What is Chronic Mental Stress?

The WSIB  has prepared an Operational Policy document (i.e Policy 15-03-14) on chronic mental stress and it was amended on January 2, 2018.  It does not have the force of law but sets out the WSIB’s interpretation on this issue. Of particular interest are the following excerpts from this Policy:

A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a “substantial” “work-related stressor”arising out of and in the course of the worker’s employment.

Workplace harassment will generally be considered a substantial work-related stressor

Workplace harassment occurs when a person or persons, while in the course of the employment, engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.

Interpersonal conflicts

Interpersonal conflicts between workers and their supervisors, co-workers or customers are generally considered to be a typical feature of normal employment. Consequently, such interpersonal conflicts are not generally considered to be a substantial work-related stressor, unless the conflict:

  • amounts to workplace harassment, or
  • results in conduct that a reasonable person would perceive as egregious or abusive.

Standard of proof and causation

In all cases, the WSIB decision-maker must be satisfied, on a balance of probabilities, that the substantial work-related stressor 

  • arose out of and in the course of the worker’s employment, and
  •  was the predominant cause of an appropriately diagnosed mental stress injury.

For the purposes of this policy, “predominant cause” means that the substantial work-related stressor is the primary or main cause of the mental stress injury—as compared to all of the other individual stressors. Therefore, the substantial work-related stressor can still be considered the predominant cause of the mental stress injury even though it may be outweighed by all of the other stressors, when combined.

Diagnostic requirements

Before any chronic mental stress claim can be adjudicated, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

  • acute stress disorder
  • posttraumatic stress disorder
  • adjustment disorder, or
  • an anxiety or depressive disorder.

In most cases the WSIB will accept the claim for adjudication if an appropriate regulated health care professional provides the DSM diagnosis. However, in complex cases, for example where there is evidence that a non-work-related stressor(s) may have caused or contributed to the injury, the WSIB decision-maker may require a further assessment, including an assessment by a psychiatrist or psychologist, to help clarify initial or ongoing entitlement.

Operation Policy 15-03-02 which was amended January 2, 2018 sets out the WSIB’s interpretation of Traumatic Mental Stress

Relationship between Mental Stress Claims under WSIA and Harassment Allegations under the Occupational Health & Safety Act

Based on the WSIB’s  Policy 15-03-04, one could argue that if a workplace investigator concludes an employee was subject to workplace harassment and the WSIB concludes this harassment was the predominant cause of an appropriately diagnosed mental stress injury then it appears that the employee would be entitled to workers compensation benefits for chronic mental health stress under the WSIA.

As a result of the recent amendments to Section 13 (4) and WSIB Policies 15-03-04 & 15-03-01 I expect there to be an increase in the number of WSIB mental stress claims.

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.

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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