While employers generally seek to provide a safe, productive and respectful working environment for all their workers – sometimes those efforts fail. In a report released in 2017, Employment and Social Development Canada’s public consultations revealed that 60% of respondents had experienced non-sexual workplace harassment, 30% had experienced sexual harassment in the workplace and 21% had experienced violence in the workplace.
Employers need to ensure that they are being vigilant when it comes to the work environment – both to ensure a safe environment for their workers (which is not just limited to employees), and to protect themselves from liability.
As a starting point, employers should ensure that they are, at least, compliant with any applicable provincial or federal legislation. For employers with workers in Ontario, the Ontario Occupational Health and Safety Act, R.S.O. 1990 c. O.1 (the “OHSA”) and the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) typically apply.
Employers in Ontario should pay particular attention to the provisions of the OHSA. While it has been nearly two years since the Ontario government introduced amendments relevant to workplace harassment and violence, some employers have not yet complied with the changes. The significant changes included:
- the incorporation of a definition of “workplace sexual harassment” into the definition of “workplace harassment”;
- the development of a workplace harassment program in consultation with the Joint Health and Safety Committee or a health and safety representative (some exceptions apply); and
- a requirement to conduct an investigation that is “appropriate in the circumstances."
The OHSA also requires employers to prepare policies with respect to workplace harassment, workplace violence and to review those policies at least annually.
Employers should also consider the benefits of providing education and training to their workers about workplace harassment and violence, and the employer’s policies and programs in respect of same. It is important for workers to understand that harassment includes a wide range of behaviours, including making remarks or jokes that demean or intimidate, bullying, displaying or circulating offensive pictures and, of course, sexual harassment.
In the event of an incident or complaint of workplace harassment, an employer must ensure that an investigation that is “appropriate in the circumstances” is conducted. Given the importance of a fair, respectful and timely investigation, consulting a lawyer with the requisite expertise and experience is recommended. However, employers should give some consideration to the nature and type of investigations that may be required before a complaint or incident occurs. While any investigation will need to be tailored to the specific circumstances, employers should give thought to the types of investigations that can reasonable conducted internally, and those that should be conducted by a third-party investigator.
Given the importance of providing workers with a safe and harassment-free work environment, and the potential ramifications of an employer’s failure to do so, taking pro-active steps is imperative. If you would like to discuss the design and implementation of workplace harassment and violence policies and programs, or discuss retaining a lawyer to conduct an investigation, please reach out to any of the lawyers from our employment law team (www.conway.pro).
Calina N. Ritchie is a partner with Conway Baxter Wilson LLP, a law firm practicing exclusively civil litigation and advocacy. Conway Baxter Wilson LLP also provides its clients with advice on litigation avoidance strategies. Calina has a bilingual practice with an emphasis on corporate commercial litigation, and employment litigation.