Harassment and bullying in the workplace occur across all sectors of employment. While the number of incidents of extreme forms of harassment at work, such as physical violence, has dropped in recent years, rather than disappearing harassment has migrated to other, often less obvious forms, such as acts of isolation, insensitivity, casual disregard for genuine employee concerns or blocking others from opportunities in the hopes that they will resign from their employment.
To address harassment and bullying, laws have been added across Canada, including Ontario, to address these circumstances. For example, Ontario’s Occupational Health and Safety Act (“the Act”) makes it clear that harassment (including bullying) at the workplace is illegal. Harassment is defined under the Act as any act or comment against a worker in a workplace that is known or should be known to be unwelcome. The definition of workplace harassment also includes sexual harassment.
Ontario’s Human Rights Code (“the Code”) also protects employees against harassment that is based on any of a range of factors including the employee’s race, religion, gender, or sexual orientation. The Code is further intended to protect employees from wrongful dismissal on these grounds.
How do I Know if I am Being Harassed or Bullied Under the Law?
Not all uncomfortable behaviour that an employee experiences at work will meet the definition of bullying/harassment under the law. It is therefore likely helpful for employees who feel they may be suffering from harassment or bullying to consider whether the law provides protection and, if so, what recourse and/or compensation is available.
Employers and co-workers who act in a manner that is demanding or unpleasant will likely not be considered to have violated the law. Employers/supervisors are specifically entitled to discipline employees and to criticize the work of employees. If, however, an employee experiences humiliation at work, is subjected to insulting language or unreasonable angry outbursts, or has their employment threatened without cause, they may have a claim for being harassed, bullied or discriminated against.
Harassment/discrimination in the workplace can take place regardless of whether an employee is working at the office or from home. Given the expansion of remote working, more workplace bullying takes place online. Employees experiencing bullying/harassment on online work platforms may wish to review the circumstances with counsel to explore options for responding.
What Does My Employer Need to Do About It?
The Occupational Health and Safety Act imposes a duty on employers to provide a safe and healthy work environment to their employees. The Act specifically mandates the following:
- Every workplace is expected to have an anti-harassment policy and a mechanism in place to handle harassment/bullying complaints;
- Employees and managers must be trained on policies to ensure they know how to respond to incidents of harassment; and
- Employers who become aware of harassment/bullying are required to investigate and address complaints of workplace harassment.
The Code also imposes a duty on employers to have workplace policies in place and to both investigate and resolve incidents of harassment on human rights grounds.
While it may be difficult for employers to identify potential incidents of harassment or bullying when employees are working from home, it does not mean that it is appropriate or legal. Rather, employers are expected to take reasonable steps to eliminate harassment or bullying even if it takes place against employees who are working remotely.
Investigation
When an employer learns of workplace harassment/discrimination/bullying (either through a formal complaint or otherwise) it becomes obliged to take steps to investigate and resolve the complaint in a timely manner, making every effort to provide or restore a healthy work environment for the employee.
An employer is expected to investigate allegations of harassment or bullying, including interviewing the employee and any other relevant individuals. Following the completion of the investigation, employers are expected to provide the complainant with the outcome of their investigation and details of the corrective action taken, if any. Failure to conduct a proper investigation may result in a violation of the Act or the Code.
Implementing Solutions
Following an investigation, the law states that an employer is expected to resolve the complaint, including, where necessary, implementing appropriate measures to restore the workplace environment to a healthy state. This does not mean that the employer is obliged to implement the employee’s preferred solution(s). Rather an employer is free to choose the process to follow if it results in effectively responding to any harassment or bullying. The most workable resolution may, for example, be inconvenient or unpopular, but nevertheless, resolve the issue.
Poisoned Work Environment
If an employer is aware of harassment, discrimination or bullying in the workplace and fails to address it, address it adequately or actively participates in it, the work environment may be deemed in law as “poisoned” or “toxic”.
A “poisoned” or “toxic” workplace is generally defined as a workplace that is intolerable and one where there is little chance that the situation can be resolved through an internal complaint process.
An employee working in a “poisoned” or “toxic” work environment may be entitled to damages associated with constructive dismissal, including severance payment and potentially damages relating to bad faith treatment at work. It is advisable to consult with counsel before claiming constructive dismissal, as there are many considerations (and risks) worth considering.
If you are experiencing harassment or bullying at work and want to review options to resolve the matter, including what compensation is available, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or here.
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