Canadian Employment Law Today

Have a question for our experts? Email jeffrey.smith@keymedia.com Answer: Where an employer has determined that a situation between co-workers amounted to harassment, it will need to design an appro- priate remedy that ensures that the complainant and other workers are provided with a safe work environment. This may require separating the complainant and the harasser, but whether it is necessary or appropriate will depend on the individual circumstances of each case. Generally, an employer's obligation to provide a safe and harassment-free workplace arises under occupational health and safety and human rights laws. An employer needs to be aware of the relevant legislation in their juris - diction. All Canadian jurisdictions — with the exception of Nova Scotia — require employers to create and implement bullying and harass- ment prevention policies, and it is good practice to have a policy that prohibits discrimination on human rights grounds as well. Employers who have found a violation of the anti-harassment legislation or their policy must take steps to address the violation and prevent future occurrences. For example, in British Columbia, the Workers' Compensation Act requires employers to take reasonable steps to remedy hazardous conditions, including situations of bullying and harassment. Employers have a number of potential reme - dies at their disposal, depending on the language of their policies, the nature and severity of the behaviour and the specific circumstances. If the employer determines that the harass- ment does not justify the dismissal of the harasser, it will need to consider how it is going to provide a safe workplace moving forward. This may involve transferring one of the involved employees to physically separate the harasser and the victim. If that is not possible, other forms of separation such as opposing shifts or working from home may also warrant consideration. In Emond v. Treasury Board (Parole Board of Canada), the adjudicator ordered the employer to move the complainant to another building following allegations of harassment. The complainant had demonstrated that her medical condition relating to stress caused by alleged harassment would not improve if she were to return to the same workplace as her harasser, regardless of the other measures the employer had put in place. The employer had offered the complainant a workspace in the same building but on a different floor than the harasser. The arbitrator found that since the employer had space in several buildings in the surrounding area and there were no specific reasons to insist that the complainant perform her duties in the same building as her harasser, it was reasonable to transfer her to another location. The adjudicator cautioned that this ruling was not, however, permission for the complainant to decide unilaterally where she would work in the future. Employers should also consider other types of separation that could be reasonable in the circumstances. In OPSEU and Ontario (Ministry of Community Safety and Correctional Services), the arbitrator found it was reason - able for the employer not to schedule the harasser to work when the complainant was working, unless there was no reasonable alternative. The employer was also ordered to allow the complainant to request sick leave if contact with the harasser could not be avoided. Interestingly, the arbitrator limited the appli - cation of these measures to five years, stating that "after five years, it is doubtful that the work environment would be poisoned simply by the reintroduction on occasional assignment of [the harasser] to the facility. Surely, enough time has gone by that the edge felt by the grievor would have been softened or smoothed." Bullying and harassment legislation in Canada generally requires employers to not punish or take reprisal measures against employees for exercising their rights. Therefore, when assessing the appropriate remedy or safe - guard measures to implement, an employer should be careful not to take actions that would have the effect of penalizing the complainant. Policies dealing with bullying and harass- ment often indicate that the employer will share its findings and remedial measures with the complainant and the harasser. In Ontario, the Code of Practice to Address Workplace Harassment states that "the employer must also ensure that any corrective action taken, if any (or to be taken) is communicated to the worker who allegedly experienced workplace harassment and the alleged harasser(s), if the alleged harasser is a worker of the employer. The amount of information provided about the corrective action will depend on the circumstances but must indicate what steps the employer has taken or will take to prevent a similar incident of workplace harassment if workplace harassment was found." If an employer fails to take appropriate measures to provide a safe and respectful work - place, it may expose itself to liability. In J.D. v. C.N., an employee complained to her employer about harassment by a co-worker. While the employer was found to have "made a number of good faith efforts" to remedy the situa - tion, the adjudicator found that, ultimately, the employer did not adequately address the complaint and so "failed to meet his legal obli- gations" to take reasonable steps to terminate the harassment, in breach of the Manitoba Human Rights Code. The employer was, there- fore, held liable for damages. Employers should consult the relevant legislation of their jurisdic- tion (and potentially seek legal advice) to assess what will constitute reasonable steps to prevent harassment in the future. Employers should be aware that separating employees following findings of harassment is only one of the remedial measures that may be available. It will only be an appropriate remedy if it is reasonable and will prevent future occurrences of harassment. An employer is not required to rent additional workspace or create a new job opportunity elsewhere in the orga - nization for the purposes of separating the two employees. An employer must take the necessary steps to address the harassment and prevent any further occurrence, but the appropriate remedy will depend on the circumstances of each case. For more information, see: • Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (Pub. Service Lab. Rel. Bd.). • OPSEU and Ontario (Ministry of Community Safety and Correctional Services), Re, 133 C.L.A.S. 279 (Ont. Grievance Settlement Bd.). • J.D. v. C.N., 2006 C.L.L.C. 230-025 (Man. Human Rights Adj. Panel). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Canadian HR Reporter, 2021 2 | | May 19, 2021 May 19, 2021 Ask an Expert HARRIS AND COMPANY, VANCOUVER with Colin Gibson Harassment complaint substantiated Question: Is an employer required to separate two employees following a successful harassment complaint where the harasser wasn't dismissed? Employers should consider various types of separation that could be reasonable in the circumstances.

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