Harassment in the Workplace in Ontario ClaimsIan
In Ontario, workplace harassment is prohibited under the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (Code). Nonetheless, workplace harassment remains an ongoing concern in both on-site and remote work environments – impacting many employees and employers.
This article aims to shed light on what workplace harassment is, the critical aspects of handling workplace harassment claims, and the responsibilities of employees and employers relating to workplace harassment.
Understanding Workplace Harassment
Workplace harassment can include bullying, offensive jokes, intimidation, violence, or other unwelcome behaviours. It also covers offensive comments or conduct based on sex, sexual orientation, gender identity, or gender expression. Any such behaviour that is known, or should reasonably be known, to be offensive, embarrassing, or humiliating may constitute harassment.
While usually harassment is a series of actions or behaviours, a single occurrence can amount to harassment.
In the remote work context, harassment can occur through various platforms such as emails, text messages, video calls, or phone calls. It’s crucial to remember that actions perceived as light-hearted or constructive in digital communication can still be classified as harassment if they are also unwelcome.
Consequently, understanding the subtle dynamics of harassment is the first step in fostering a safe and respectful work environment.
If you are an employee who is suffering from harassment in the workplace, consult with a human rights lawyer to understand your options and rights.
The Role and Responsibilities of Employers
The laws in Ontario impose an obligation on employers to protect their employees from workplace violence and harassment. This obligation extends to remote work environments, making it essential for employers to adapt their policies to cover potential harassment in these settings.
Employers must take steps to address and prevent harassment. Employers must also foster an environment that allows employees to feel comfortable coming forward to report harassment as it arises.
To that end, employers must maintain clear, accessible, and written policies addressing harassment. These policies should include:
- Processes for reporting workplace harassment;
- Ways for an employee to report harassment to someone other than their direct supervisor;
- Clear instructions on how employers should handle these reports or complaints;
- Assurance that the information will be kept confidential, except when needed for the investigation or as mandated by law; and
- Assurance that both the alleged harasser and the employee who filed the complaint will be informed about the investigation’s outcome.
The employer’s duty to investigate is triggered by any allegation of harassment, whether it was made formally or informally. Once this is triggered, employers should conduct prompt and impartial investigations to ensure fairness. Failure to do so could attract sanctions from the Ministry of Labour and can lead to claims of human rights violations or constructive dismissal.
A litigation lawyer can help an employer navigate the process of investigating harassment complaints and help to limit their exposure to liability.
Employee Actions and Legal Remedies
Employees encountering harassment should take proactive steps to address the issue. Reporting the incidents in writing to the employer is often the first significant step in addressing workplace harassment.
Employees have access to various legal remedies depending on the nature of the harassment. They have the option to lodge a complaint with the Ontario Human Rights Tribunal if the harassment discriminates on one of the Code’s protected grounds.
If an employer fails to address harassment in the workplace properly and the harassment has made it unreasonable for the employee to keep working, the employee may consider suing their employer for payment in lieu of reasonable notice and other damages based on a successful claim of constructive dismissal.
An employee’s claim for notice period pay includes their minimums under the Employment Standards Act, 2000. Factors for determining the length of common law reasonable notice an employee may be entitled to, known as the Bardal factors, include:
- Age of the employee;
- Years of service;
- Nature of their position and character of the employment; and
- The difficulty of finding comparable roles.
The courts also consider any other relevant factors.
Workplace harassment is a significant issue that impacts employees and employers in on-site and remote work environments. Employers in Ontario have a legal duty to prevent harassment and provide a safe work environment.
Employees should report incidents in writing to their employer. Employers must conduct an investigation once they receive a complaint.
Creating a safe and respectful work environment requires fulfilling responsibilities and taking proactive measures against harassment.
If you are unsure about any work obligations you may have as an employer or are an employee who feels they may be the subject of workplace harassment or violence, our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at 1-866-553-2024 or email us at [email protected], as we are happy to assist.