Canadian HR Reporter

CANADIAN HR REPORTER SEPTEMBER 2018 EMPLOYMENT LAW 5 JOINT VENTURE BY: CIVIL > pg. 6 Source: CareerBuilder.ca Lisa Bolton and Gerald Griffi ths LEGAL VIEW 2013 RANKED We're the apple a day. sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz At Sherrard Kuzz llp we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent painful headaches tomorrow. From human rights to health and safety, and everything in between… If you're an employer, we're the only call you need to make. 24 HOUR 416.420.0738 Workplace harassment: Understanding an employer's risks and obligations #MeToo movement heightens public awareness Consider this: • 40 per cent of Canadian work- ers experience bullying in the workplace on a weekly basis, according to a 2006 sudy in the European Journal of Work and Organizational Psychology. • 28 per cent of Canadians have experienced workplace sexual harassment, according to a 2014 report from the Angus Reid In- stitute. • 17 per cent of all incidents of vio- lent victimization in Canada oc- cur in the workplace, according to a 2007 report from Statistics Canada. Gone are the days of turning a blind eye to bullying and work- place harassment, whether sexual, verbal or psychological. Govern- ment initiatives and the #MeToo movement have heightened pub- lic awareness of these issues. Now, more than ever, an em- ployer must take seriously its ob- ligation to respond to and inves- tigate an allegation of workplace harassment. An employer that fails or re- fuses to get on-board does so at its peril, risking public embarrass- ment and employee discontent, not to mention a hefty regulatory fine and an award of damages from a court or adjudicator. To help employers navigate this burgeoning area of workplace management, we've identified relevant harassment legislation across Canada and recent ex- amples of the fi nancial implica- tions of disregarding workplace harassment. Harassment legislation across Canada British Columbia, Alberta, Sas- katchewan, Manitoba, Ontario, Quebec and the Northwest Ter- ritories all have legislation aimed at addressing (to varying degrees) workplace harassment and bul- lying. Prince Edward Island and New Brunswick are both in the process of developing workplace harassment legislation. In the federal sphere, while ex- isting workplace violence legisla- tion has historically been applied to workplace harassment causing psychological injury, new legisla- tion expected to come into force later this year expressly requires an employer to take proactive measures to protect against ha- rassment, including sexual ha- rassment, and to investigate and respond to such complaints. Where an employer is statuto- rily obligated to enact measures to protect against harassment, failure to do so can result in high sanctions and fi nes. In On- tario, for example, this includes a fi ne up to $500,000 per incident against a corporation and a fi ne up to $25,000 and imprisonment up to 12 months (or both) against a corporate director. In the case of an investigation gone wrong, an employer may also be ordered to have an investi- gation conducted by an indepen- dent third party at the employer's cost. In addition to legislation direct- ed at harassment, every Canadian jurisdiction has human rights leg- islation prohibiting harassment on the basis of protected grounds Notable cases The Employee v. The Company and the Owner, 2017 CarswellBC 3445 (B.C. Human Rights Trib.). A British Columbia woman experienced inappropriate comments and inappropriate touching by her employer, "Mr. S." The worker fi led a complaint for sexual harassment, but Mr. S. offered an agreement that in exchange for $800, the worker would "discontinue any and all actions against (the employer)." She accepted but wasn't given any more work, so she continued her complaint. The tribunal found the agreement was unfair as the employee received much less than what she would likely have received for a successful complaint, in addition to lost wages. Doyle v. Zochem Inc., 2016 CarswellOnt 19295 (Ont. S.C.J.). Melissa Doyle was a supervisor at Zochem. The workplace often had a "locker room" mentality with photos of scantily clad women and sexual banter. Doyle reported the harassment but it continued, so she asked the chief engineer to intervene, and he demeaned and insulted her. The assistant general manager also determined her complaint didn't have merit. Doyle was then terminated as the company was "making a change" but she refused to sign a fi nal release for six months' salary so Zochem paid her the statutory minimum. The court awarded Doyle 10 months' pay in lieu of notice and $85,000 in damages for bad-faith dismissal and breach of human rights. Garneau v. Buy-Rite Foods, 2015 CarswellBC 1213 (B.C. Human Rights Trib.). Kyle Garneau suffered from a birth defect that affected him both mentally and physically. He was also gay, but was not public about it. He testifi ed the new owners called him offensive names and he was harassed. Garneau also said he was physically assaulted by another employee and had personal property damaged and stolen. The tribunal found that in all instances — mental disability, physical disability, and sexual orientation — Garneau's characteristics were protected from discrimination and awarded him $15,000 in damages for injury to dignity, feelings and self-respect. Credit: Artit Fongfung (Shutterstock) Sexual harassment at work 45 per cent of workers said they have felt bullied at work. 26 per cent decided to quit their jobs to escape the situation. 43 per cent said the bullying stopped. 14 per cent said it got worse. 44 per cent said the bullying didn't change at all. After victims confronted the bully: Source: The Gandalf Group Sexual harassment in the workplace is reported: 2 % 44 % 48 % most of the time some of the time rarely Bullying at work

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