A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

It's NEVER okay, and the law agrees

It's NEVER okay, and the law agrees

For most Canadians, their working relationships are the most important ones in their everyday lives, outside of their romantic partners or immediate family. Like any healthy relationship, these are meant to be positive connections with others, where one can feel safe, secure, and valued for who they are. 

Yet those relationships can turn toxic, and that sense of safety and security immediately begins to erode the moment violence and harassment enter the picture. While domestic abuse is absolutely never acceptable, neither is any sort of abusive conduct in the workplace. This is why, back in 2009, the Province of Ontario introduced major legislation, better known as Bill 168, into the Occupational Health and Safety Act ("OHSA" for short) that dealt directly with workplace violence and harassment.

Now, the next round of changes is coming to OHSA in the form of Bill 132, formally titled "An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters," which in this instance deals specifically with workplace sexual harassment.

Wikimedia Commons \ Leon Israel

Wikimedia Commons \ Leon Israel

As of September 8, 2016, OHSA's definition of 'workplace harassment' will be expanded to include 'workplace sexual harassment,' which is defined as follows:

  (a)  engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
  (b)  making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; (“harcèlement sexuel au travail”)

This definition goes far beyond the image above. While workplace sexual harassment may instantly conjure up an image such as the one above, it can also include comments, jokes, gestures, or other such conduct which is clearly unwelcome in the workplace.  However, there is also a key portion of the definition which states "A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment." In other words, not everything can instantly be considered harassment, especially if it is a reasonable action taken by management in order to run the business.

The new provisions include strict guidelines for employers in terms of how they plan to deal with incidents of harassment. Employers are required to work with the company's health and safety representative or committee (depending on the number of employees) to develop an 'action plan' of sorts that includes reporting measures for how incidents will be reported, a procedure for how incidents will be investigated and dealt with, a system for keeping sensitive information confidential unless otherwise required, a strategy for notifying parties of the results of the investigation, and any other prescribed elements. 

Employers are held responsible for ensuring that thorough investigations take place, and that the parties are informed in writing of the results and any resulting disciplinary measures or other actions that will take place. If the matter goes to a Ministry inspector, the inspector can order an investigation by a qualified, impartial third party investigator to take place at the employer's expense. 

So, what does this mean for both employers and employees?

For employers, the September 8 deadline is fast approaching, and the next few weeks are crucial in terms of making sure policies are up to date and that proper investigation procedures are in place. The law says policies should be reviewed and updated annually, and an employment lawyer can help draft and implement these policies to make sure they best suit your business. 

If you are an employer faced with an incident of workplace harassment, a qualified third-party investigator is often the best way to go. These are trained and highly skilled professionals who will make sure the investigation is done thoroughly, exceeding all the minimum legal requirements, and that the incident in question is dealt with appropriately in order to minimize the likelihood of repeat occurrences in the future. 

For employees, the change in the law provides a new line of added protection that should leave everyone feeling safe at work. While many employers already have exemplary harassment policies in place, and a recent string of television commercials and public awareness campaigns from the provincial government have done much to highlight the issue, these additions to the legislation help solidify such protections. Now, if an employee makes a complaint about workplace sexual harassment, the employer is obligated to ensure the complaint is dealt with thoroughly and completely, and not just swept under the rug. 

The bottom line is that workplace violence and harassment of any nature, sexual or otherwise, is never okay. Not only does it violate OHSA, but there may be other legal consequences as well, potentially even criminal ones depending on the specific circumstances. If you find yourself the victim of these incidents and want to know your rights in these situations, or you are an employer looking to overhaul your policies in the next few weeks, contact an employment lawyer today for further assistance. 

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