Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY No previous case where employee suffered such extensive harm ...continued from page 3 correctional officer and can never return to work in a correctional institution. •He lost opportunities to advance his career. •The employer's breach affected every aspect of both his professional and personal life. •The impact of delay in investigating the complaint affected Ranger adversely and made him sicker. •There was almost no evidence to justify the delay. •The delay to investigate was a breach of the employer's duty. •There has been no case before the arbitrator where a complainant has suffered such extensive harm. This case demonstrates the principle that damage awards attempt, so far as possible, to restore the dignity interest of the employee and, given this is the largest sum ordered yet, there will be no hesitation in doing so. In summary, the breach was egregious, did great harm and was foreseeable. The combination of the harassment, discrimination and not being accommodated for so many years left Ranger emotionally crippled, ASK AN EXPERT ...continued from page 2 employees from coming forward with discrimination complaints, and in most cases it will be inappropriate to reprimand or otherwise penalize an employee whose discrimination complaint is found to be unsubstantiated. There is an important difference, however, between the initiation of a discrimination complaint that ends up being unsuccessful, and the filing of a complaint that is frivolous, vexatious or vindictive in nature. The latter is a significant employment offence, and in most cases will be grounds for disciplinary action. distrustful of everyone and completely crushed. Lessons for employers Employers should ensure under all circumstances the Human Rights Code is complied with, in the event of any reported breach an investigation is promptly done and the duty to accommodate is treated very seriously. Advance training of all staff on the Human Rights Code and harassment prevention should be regularly performed. Management should be reminded periodically that any breach of the Human Rights Code is unlawful and, if a breach is reported, this should be taken seriously and promptly investigated. Further reminders that the duty to accommodate must not be delayed for any reason is essential. As well, accommodation is up to the point of undue hardship, so the employer may be expected to suffer some hardship in accommodation, but not undue hardship. Lessons for employees Employees should be aware employers must respect human rights as prescribed in the Human Rights Code and The fact that an employee's discrimination complaint has been dismissed — even if the complaint was found to be frivolous in nature — does not necessarily mean future complaints made by the same employee are invalid and can be ignored by the employer. An employer who is faced with this situation should conduct at least a preliminary investigation to determine whether there may be some basis for the employee's allegations. Otherwise, the employer may find itself facing liability for failure to investigate. Employers should have effective policies in place for the filing and disposition of human rights-based discrimination complaints. Such policies should include language indicating the filing of frivolous or vexatious com- the employers' duties to investigate and accommodate are taken very seriously. A poisoned workplace may foreseeably result in injury to dignity, feelings and self-respect for which an employer may be ordered to provide compensation. CELT For more information see: ■ Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Ranger), Re, 2013 CarswellOnt 10358 (Ont. Grievance S. Bd.). ABOUT THE AUTHOR Ronald S. Minken Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique located in Markham, Ont. He can be reached by visiting www.EmploymentLawIssues.ca. Ronald gratefully acknowledges Kyle Burgis and Sara Kauder for their assistance in preparation of this article. plaints will not be tolerated and may lead to disciplinary action. Where a policy of this nature is supported by appropriate training, it will be less likely the employer will be burdened by complaints that are clearly false. CELT For more information see: ■ Boivin c. Orchestre Symphonique de Laval 1984 Inc., 1992 CarswellQue 111 (Que. S.C.). ■Zaraweh v. Hermon, Bunbury & Oke, 2001 CarswellBC 2195 (B.C. C.A.). ■ Giza v. Sechelt School Bus Service Ltd., 2012 CarswellBC 22 (B.C. C.A.). Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 9

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