Canadian Employment Law Today

October 20, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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ANSWER: It is critical that employers under- stand their obligations when they receive a complaint or even have a suspicion that harass- ment is taking place in the workplace. As regular readers will know, when that occurs, there is a positive obligation to conduct an investigation. While the nature and scope of investigations can vary greatly, there is one important point that many overlook: it is a fundamental duty of an investigator to reach a conclusion as to whether or not harassment took place. We often get the objection that the situation is a matter of credibility or a "he said/she said" scenario, with the implication being that it is impossible to figure out what happened. Sim - ply put, that is not good enough. An investiga- tor must reach a conclusion. That said, it is im- portant to remember that this is not a criminal trial and the standard of proof is not "beyond a reasonable doubt." Rather, the standard of proof is the civil standard, which is the balance of probabilities. In other words, is it more likely than not that there was harassment? Another way of putting it is that the standard is "50 per cent plus one." In order to reach a conclusion, the investiga - tor must assess all available evidence and con- sider whether the evidence of one witness is in- ternally consistent and whether it is consistent with the other evidence that exists. The standard is not correctness, since it is impossible to know what actually happened, but that a reasonable effort was made to reach a conclusion that is de - fensible based upon the evidence and process. There is also an obligation to advise the parties of the conclusions reached in the investigation. If the finding is that there was harassment, then the employer should consider whether discipline is required, as well as whether there should be training for any of the parties or for the broader workforce. Even if harassment is not found, there may be a finding that there was con - duct or that there were relationship issues which require attention. In many cases, we are involved in investigations where the finding is that there was no behaviour that rose to the level of harass- ment, but there were personality issues or exam- ples of poor management that required training. ANSWER: Not surprisingly, this is an issue that we have been dealing with for the better part of the pandemic. Simply put, many people are scared to go to work because of the perceived risk of getting there, especially if they rely on public transportation, and less because of a per - ceived risk in the workplace itself. Occupational Health and Safety laws allow workers to refuse to engage in unsafe work. That has historically been related to physical risks, such as machine guards that were not properly installed (or installed at all). However, it applies equally to risks relating to transmis - sion of a virus. If there is a clear safety risk in the workplace, the employee has the right to refuse to work until it has been addressed. If the employer dis- agrees, a complaint is to be made to the Ministry of Labour, which will assign an inspector to in- vestigate the matter and assess the risk. In order to justify a work refusal, there must be a clear safety risk in the workplace. A general- ized fear of catching the virus is not sufficient, especially if it relates to catching it outside of the workplace itself. You may have seen media coverage of the fact that the Ministry of Labour in Ontario has rejected almost every single work refusal relating to COVID-19. That is because there was no evidence of a clear safety risk. General fears of the virus will not justify a work refusal, particularly if they relate to commuting to and from work, as opposed to the workplace itself. The same analysis will apply to driving con - ditions. Obviously, in Canada, there is a rec- ognition that there may be some winter days during which it is not safe to drive. Employers should be reasonable in that regard. But un- safe driving conditions do not justify a work refusal. Stuart Rudner is the founder of Rudner Law, an employment law firm in Toronto. He can be reached at stuart@rudnerlaw.ca or (416) 864- 8500. Canadian HR Reporter, 2021 2 | | October 20, 2021 October 20, 2021 Have a question for our experts? Email jeffrey.smith@keymedia.com Unable to prove or disprove harassment complaint QUESTION: What are an employer's legal obligations when an employee complains of harassment that an investigation cannot prove or disprove? Ask an Expert with Stuart Rudner RUDNER LAW, TORONTO COMPANY'S on page 7 ยป Work refusal due to hazard outside workplace QUESTION: Can an employee who has to come to the physical workplace make a work refusal because of a hazard that isn't in the workplace, but is one that they believe makes their commute dangerous, such as driving conditions? CREDIT: SEBASTIAN GORCZOWSKI iSTOCK It is a fundamental duty of an investigator to reach a conclusion as to whether or not harassment took place.

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