Employees in Ontario have the right to be free from bullying and harassment in the workplace as prescribed under Ontario’s Occupational Health and Safety Act (“OHSA”) and Human Rights Code (“Code”). Specifically, employers are required to provide a safe and healthy work environment that is free from bullying and harassment as well as address any complaints or incidents.
Despite these legislated protections and obligations, employees may still find themselves subjected to instances of bullying and harassment in the workplace. This may be consequential to employers as this type of conduct may give rise to a constructive dismissal claim or a claim of discrimination.
Accordingly, we review harassment and bullying under the law and discuss the remedies available to employees.
What is harassment?
“Workplace harassment” is defined under OHSA as engaging in a course of vexatious comments or conduct against a worker in a workplace that is known, or ought reasonably to be known is unwelcome. Harassment may include behaviours that occur one time or many times. The definition of workplace harassment includes sexual, psychological harassment, and physical harassment.
Some examples of workplace harassment may include the following:
- Making remarks, jokes, or innuendos that demean, ridicule, intimidate or offend; whether communicated in-person, by telephone or through email;
- Belittling or condescending comments or jokes in verbal or written form;
- Yelling, or making verbal threats;
- Displaying or circulating offensive pictures or materials in print or electronic form;
- Repeated offensive or intimidating correspondence;
- Unwanted sexual behaviour, including unwanted sexual actions and comments;
- Unsolicited criticism about a person’s personal characteristics, or appearance.
Reasonable conduct relating to the management or direction of an employee, such as constructive criticism or instructions relating to one’s employment will generally not be considered a violation of the law. However, more serious incidents causing increased levels of harm to an individual, such as humiliation, insulting language, inappropriate behaviours or unreasonable angry outbursts may amount to workplace harassment under OHSA.
Bullying and Harassment Based on Human Rights Grounds
The definition of workplace harassment is broad enough to include all types of harassment prohibited under protected grounds in the Code, such as disability, sex, citizenship, race, gender expression, age or sexual orientation.
Under the Code, employees have the right to “equal treatment with respect to employment” in all aspects of their employment, including but not limited to, hiring, training, transfers and promotions, layoffs and dismissal, rate of pay, overtime and hours of work, discipline, and performance evaluations.
Where the workplace becomes intolerable, hostile, or unwelcoming because of insulting, unsolicited or degrading comments or conduct based on a protected Code ground, a poisoned environment may exist, which may cause the employee to feel uncomfortable or unsafe. Whether a workplace has become a poisoned environment will be determined by whether an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions.
Employees who have been subjected to a poisoned work environment and/or bullying and harassment based on a protected Code ground may be entitled to pursue a claim for general damages and as well as reinstatement (if the employee has been dismissed).
What are my employers’ duties?
OHSA sets minimum standards that employers must abide by when dealing with harassment in the workplace. Employers are obligated to:
- Implement a workplace policy that outlines:
- Where an internal complaint can be made (i.e., to a supervisor, manager, human resources);
- How to make a complaint or report an incident of workplace bullying/harassment; and
- How complaints/incidents will be investigated and resolved.
- Inform and instruct employees of the workplace policies and programs (i.e., via a letter, meeting, email, information posted up in the workplace);
- Review the company’s workplace policy on an annual basis or as necessary;
- Ensure proper and formal investigations are conducted following incidents or complaints of workplace bullying and harassment in a timely and effective manner; and
- Inform the complainant worker and the alleged harasser of the findings of the investigation in writing and any further actions or disciplines that will be imposed.
Employers are expected to take reasonable steps to eliminate bullying and harassment in the workplace, including in remote work environments.
What Are My Options if I am Being Bullied and or Harassed?
Potential outcomes, if you are bullied or harassed at your workplace, may include claiming constructive dismissal or filing a human rights application or a civil claim.
Constructive Dismissal Claim
Situations of mistreatment including bullying, discrimination, or sexual harassment can constitute constructive dismissal. For example, constructive dismissal may be claimed in a situation where an employee felt so uncomfortable or unsafe in their place of work that it essentially prevented them from performing their duties, and or forced them to leave their employment. In order to be able to claim constructive dismissal, you will be required to display that you have taken appropriate action (i.e., file an incident report/complaint to your employer). If you do not do so, it may be considered you have accepted the mistreatment you have been subject to.
Human Rights Application
If it is found that you have been discriminated against in the workplace based on a human rights ground under the Code, there is potential you could be compensated for both monetary loss suffered (loss of income) as well as mental suffering or damage to your self-dignity.
Employers may be liable to pay for damages if a civil claim is made against them for harassment in the workplace. However, there is a test for harassment that must be met in order to for the claim to be successful. A civil claim may generally be made against an employer for breaching duties pertaining to health and safety, and prevention of harassment under OHSA, and/or the Employment Standards Act, if applicable.
Contact Sultan Lawyers in Toronto for Advice on Workplace Harassment Claims
If you believe you have been harassed and or bullied at work and your employer did not fulfil their duties according to the Human Rights Code or the Occupational Health and Safety Act, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or here.
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