An ounce of prevention

WoodIndustryJanFeb2017coverEveryone wants to have a harassment-free workplace, whether you toil on a shop floor or behind a desk. Laws have been written at both the federal and provincial levels of government that deal specifically with workplace safety — mental and physical — which provide both protection for employees and spell out the responsibility of employers.

Laws are also re-written, meaning that what applied to your workplace yesterday might not apply today — so everyone has keep on their toes or risk being left behind.

Last fall, this happened in Ontario when Bill 132, the Sexual Violence and Harassment Action Plan Act, became law in September.

The Act expands the definition of workplace harassment to include sexual violence and sexual harassment and adds the definition of workplace sexual harassment to the Occupational Health and Safety Act (OHSA), according to Damien Buntsma, lead at Lawrences’ Employment & Labour Group in Brampton, Ont.

Damien Bunstma

Damien Bunstma

Sexual harassment “wasn’t properly defined before,” says Buntsma, “this is a better definition that makes it more clear of what exactly sexual harassment is, such as general comments about a person’s gender, sexual orientation and, what has become more prominent in the last couple of years, gender identity.”

Subjectivity enters the picture, too, in many cases. So what constitutes harassment can be in the eye of the beholder. “It has always been somewhat subjective,” says Buntsma, “at one time it (harassment) was either considered something that didn’t exist or wasn’t being punished.”

Now it is defined as conduct that is uninvited and unwelcome by the other person. He describes a case from several years ago at a “mattress sales establishment involving two individuals going back and forth where there was obviously conduct unbecoming in the workplace as the two would engage in sexually charged jokes against each other. This was found not to be sexual harassment because … if you are going to be a willing participant in what would otherwise be considered inappropriate behaviour, it may not actually be grounds for sexual harassment.” That would still probably hold true today, he notes.

Nadine Zacks, a labour and employment lawyer in Hicks Morley’s Toronto, Ont., law office, agrees that the new law is an improvement to some extent. “The definition in and of itself probably arguably already captured most if not all of what is specifically included in workplace sexual harassment. There is now a specific provision that talks about individuals who are in a position of power over someone and sexual harassment in that respect.”

NadineZacks

Nadine Zacks

According to Zacks, the amendments revised and expanded the definition of “workplace harassment” in the Act to include “workplace sexual harassment” and introduced new requirements for workplace harassment programs.

Specifically, Zacks notes, the program must now, among other things:

• be developed and maintained in consultation with the joint health and safety committee or health and safety representative within the workplace;
• include a reporting mechanism for incidents of workplace harassment, including a reporting mechanism for when the alleged harasser is the employer or supervisor;
• ensure that all complaints and allegations are investigated; and,
• set out how the complainant and respondent will be informed in writing of the results of the investigation and any corrective action taken.

“There is now a new requirement that the employer has to consult with the joint health and safety committee before it amends or implements the program that’s related to workplace harassment,” says Zacks.

Lorrie Por, partner with Harrison Pensa of London, Ont., and chair of the firm’s Employment and Labour Law Practice Group, says “to be quite frank, the new requirements in the policy are what we recommended on a best policies perspective before they came into place.”

Lorrie Por

Lorrie Por

This makes sense to Zacks, who feels that “pursuing a complaint under the employer’s internal policy may be sufficient to supply an employee with the remedy that they are seeking.” This would also avoid the scenario where a criminal remedy might have been pursued.

The problem for many smaller companies, however, is that resources are scarce and being proactive about human resources policies can be the last thing on a busy employer’s mind — and bank account.

Employees are entitled in Ontario to request a Ministry of Labour investigation into their complaints, but another course of action could be pursued. “If it’s a very small or closely knit company,” says Zacks, “it may be necessary for the employer to engage an external investigator to actually interview witnesses and the individuals involved. (Then) either come to a decision on the facts or come to a recommendation on the proper outcome and corrective action that should be taken will be.”

When any investigation takes place there is a price tag involved for the employer, over and above any pain and suffering incurred by the individuals involved. This cost can depend on where the incident took place (Toronto is more expensive on average) and the number of witnesses involved, according to Por. “By somebody who knows what they are doing — and there are a handful of people to investigate — you are probably looking at $5,000 to $10,000.” She notes that the cost can easily rise to $15,000 “when the net is cast a little further for more witnesses.”

Employees are more aware of their rights these days, according to Zacks. “It tends to bring more complaints coming forward which brings more time to deal with them.”

Buntsma explains that an employee who brings forward frivolous complaints based on exacting punishment towards a fellow worker or boss for personal reasons can face a sanction of the their own. “Employers that are concerned about the floodgates being open to harassment claims should know that there are repercussions to employees who make frivolous claims.” Employees who are found to have made frivolous claims are subject to discipline up to, and including, termination of their employment.

“It’s scary because it is very hard for employers to decipher whether or not this person’s legitimate complaint was unfounded,” says Buntsma, “or whether or not this complaint was completely illegitimate and they launched it in a frivolous manner. If they actually thought they were being harassed and nothing could be found, then the employer can’t do anything to the employee.”

Many employers are confused about the new “duty to investigate” that is now included in the Act, Zack notes. The Act now requires an employer to ensure that “an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.” This obligation is triggered not only when a worker makes a “formal” complaint pursuant to the policy or program, Zacks adds, but also whenever an employer becomes aware of an incident of workplace harassment (for example, by viewing the incident or hearing about it from a third party).

An employer can retain an independent investigator to look into any allegations of sexual harassment, Buntsma notes, in the hopes of avoiding an investigation from the Ministry of Labour. “Sexual harassment is such a charged issue that it may wise to bring someone in.” However, Buntsma cautions, “if they do a thorough investigation and provide a thorough report with recommendations, it’s unclear under the Act if the employee could then still complain to the ministry and say ‘I feel this report or investigation was improperly completed or was done in such a way that satisfies my rights’ and the ministry could still come in to do another investigation and provide another report at the employer’s expense as well.”

The best thing that any employer can do is to make sure they are keeping up-to-date and aware of their statutory responsibilities, according to Buntsma. “Usually that will involve, unfortunately, being in touch with their legal counsel. But experienced legal counsel should be providing each and every one of their clients with a pure assessment of what they need to have in place to avoid legal liability in the future.”

Por agrees: “Prevention is always worth the money because it is less expensive to get legal advice on how to prevent a problem rather than how to fix one, especially once the employer has been sued.”

It is difficult to provide a cost range, says Por, since “it depends on depth of training required and who is doing the training. It could run literally from a few hundred dollars to thousands.

She points out that there are good online resources as well. “The Ontario Human Rights Commission has some and they are good and free!”

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