Canadian Employment Law Today

April 21, 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: When a complaint comes directly from a victim of workplace harassment, the legal obligations of an employer to investigate and take action to address any harassment are clear. However, in some cases, the complaint will not come directly from the victim and will instead be raised by other employees who have witnessed or otherwise become aware of work- place harassment affecting other employees. The obligations of employers in these cir- cumstances are largely similar to when the complaint is made by the victim, but they can raise additional challenges when the victim does not wish to file a complaint and does not want the employer to investigate the circum- stances. Generally, when an employer learns of pos- sible workplace harassment, the employer should begin by speaking to the victim of the alleged harassment. If the victim agrees to file a complaint, then the employer can proceed in the normal course by investigating the com- plaint and taking actions to address workplace harassment pursuant to the employer's harass- ment policies. If the victim does not wish to make a com- plaint regarding the alleged harassment, the employer may still have an obligation to inves- tigate and ensure that the workplace is safe and harassment-free. However, in circumstances where the incident complained of is isolated and minor in nature, it may be most practical for employers to provide an email to the vic- tim, summarizing the complaint received, the conversation with the victim, the victim's deci- sion not to file a complaint and the direction provided by the victim not to proceed with an investigation. This may provide some protec- tion to the employer should the failure to in- vestigate or act in response to alleged harass- ment be the subject of a later grievance, human rights complaint or court action. Answer: An employer's reasons for termina- tion in a termination letter and record of employment, such as whether the employ- ee's termination was with or without cause, can have an impact on an employee's ability to obtain new employment and receive em- ployment insurance or other compensation or benefits. Employees have several options available to them to challenge the reasons for termination, including in circumstances where they disagree with what is contained within the termination letter or record of employment. First, the employee may raise the termina- tion letter directly with the employer in an at- tempt to come to an agreement regarding what is contained in the letter. In some cases, em- ployers and employees may be able to come to a satisfactory resolution through such a discus- sion, avoiding further action entirely. Second, if the employee and employer are unable to agree, the employee may com- mence a civil action by bringing a wrongful dismissal claim. There are generally limi- tation periods that vary province by prov- ince for employees to bring a wrongful dis- missal claim. If an employee is successful in a wrongful dismissal claim, they will be awarded damages for the losses they have in- curred as a result of the employer's breach. Third, the employee may bring a human rights complaint to the human rights com- mission in circumstances where it is alleged that their termination of employment was based on a prohibited ground, such as dis- ability, gender or race. The limitation period for commencing a human rights complaint is determined by the governing provincial or federal human rights legislation applicable to the employee, depending upon their juris- diction of employment. Fourth, in unionized contexts, the union may grieve the termination on behalf of the employee. The timing and conduct of a griev- ance will depend on the particular collective agreement, but, typically, an arbitrator will make a determination of whether the termi- nation accorded with the terms of the collec- tive agreement as well as any relevant pro- vincial statutes that have been incorporated into the collective agreement. With respect to the record of employment, the employee may challenge the reason for termination on a record of employment di- rectly through the Service Canada website. The record of employment is particularly important to an employee's ability to receive employment insurance benefits. The Employment Insurance Act provides for benefits to be made to insured persons who have had an interruption of earn- ings from their employment and who have worked the requisite number of hours. An employee who has lost their employment through their own fault, either for being dis- missed for misconduct or voluntarily resign- ing, may not be eligible to receive regular employment insurance benefits. Employees whose applications for em- ployment insurance benefits are rejected by Service Canada may submit a request for reconsideration within 30 days. An agent may contact the employer and employee in assessing whether a record of employment disposition was appropriately made. The agent's decision may also be appealed to the Social Security Tribunal of Canada. The em- ployee has 30 days after the agent communi- cates their decision to file an appeal. Given the significance of the disposition of termination for both the employer and employee, it is important for employers to carefully consider the nature of the termina- tion (i.e., did the employee resign, was the employee terminated for cause or was the employee terminated without cause). Since the reason for termination may be subject to various claims and challenges, it is impor- tant that the reason for termination is appro- priately determined at the outset. Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and employment law. She can be reached at (306) 956-6994 or Canadian HR Reporter, 2021 2 | | April 21, 2021 April 21, 2021 Ask an Expert Have a question for our experts? Email MLT AIKINS, SASKATOON with Amy Gibson Harassment complaints by third parties Question: How should an employer handle a complaint of workplace harassment by someone who isn't the victim if the victim hasn't made a complaint? Employee disagrees with reason for dismissal Question: What happens if an employee disagrees with the reason for dismissal in a termination letter or a record of employment? The record of employment is important to an employee's ability to receive EI benefits.

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