Canadian Employment Law Today

February 19. 2014

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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February 19, 2014 4 Published by Canadian HR Reporter, a Thomson Reuters business 2014 Ignore harassment at your own risk Increased focus on workplace harassment and bullying by lawmakers and society in general means increased pressure on employers to deal with it properly and fairly | BY SARAH VOKEY | In June 2010, Bill 168 came into force and amended Ontario's Occupational Health and Safety Act (OHSA). With this amendment in force, Ontario be- came the third province in Canada to enact protection for employees against violence and harassment in the work- place and, in turn, placed an increased obligation on employers to provide a workplace that is free from harassment and violence. Given amendments to the legislation and increased media atten- tion on bullying, employers are dealing increasingly with complaints of work- place harassment and bullying, requir- ing them to take appropriate steps to ef- fectively deal with these complaints. As employers continue to develop and follow procedures to deal with com- plaints of workplace harassment and bullying, we continue to see the law in this area develop. For example, recently, a precedent-setting decision of a tribu- nal assembled by McMaster University in Hamilton to hear serious allegations of harassment in the workplace dem- onstrated that harassment complaints have traction and can attract serious consequences. In this case, the McMas- ter tribunal handed down sanctions of lengthy suspensions without pay, ben- efi ts, privileges or access to the univer- sity's premises during the suspensions and removal from positions of authority. Manner of investigation important It is has also been further clarifi ed by the case law that the manner in which investigations into harassment are con- ducted is important. Employers may face increased risk with decisions made based on faulty investigations, and therefore must be very careful to ensure a proper investigation process is fol- lowed and documented. With respect to investigations, courts have also empha- sized that there is a dramatic benefi t to hiring an external workplace investiga- tor. Finally, it has been clarifi ed in On- tario that a decision to terminate an em- ployee because he has brought forward a harassment complaint can constitute reprisal and may attract the consequenc- es of section 50 of the OHSA — which specifi cally prohibits reprisals against employees who exercise their rights un- der the act. While the above examples provide a glimpse into the developments in the area of bullying and harassment in On- tario, in practice we fi nd that two key ar- eas of focus for employers in effectively dealing with harassment and bullying in the workplace are policies and the question of what to do with the results of an investigation. Under the OHSA, for example, employers are required to, among other things, implement policies that prohibit workplace harassment and investigate complaints when they arise. However, the legislation does not con- tain comprehensive guidance on how to put together a policy that is useful to the organization or how to deal with a fi nd- ing of workplace harassment and bully- ing as a result of the investigation. The OHSA requires that employers with more than fi ve employees prepare a written policy with respect to workplace harassment and review the policy as of- ten as is necessary, but at least annually. Employers are also required to develop and maintain a program to implement the policy. The program must include — and the policy should therefore explicitly outline — measures and procedures for workers to report incidents of workplace harassment to the employer or supervi- sor, and outline how the employer will investigate and deal with incidents and complaints of workplace harassment. It is also advisable for the policy to in- CASE IN POINT: WORKPLACE BULLYING/HARASSENT Continued on page 5 BACKGROUND BACKGROUND AWARENESS OF bullying and harassment in society in general, and what we need to do to stop it, is increasing everywhere. Whether it's girls in school being taunted and made fun of to the point of suicide, or players on sports teams getting hazed to the extreme, society's tolerance for such behaviour is getting lower. And this attitude is translating to the workplace as well. More Canadian jurisdictions have been enacting legislation against and more courts and tribunals have been showing little patience for workplace bullying and harassment. And this is making it essential for employers to know how to recognize when it's going on and to take quick and decisive action to curb and prevent such behav- iour. Employment lawyer Sarah Vokey discusses some key points for employers in preventing workplace bullying and harassment. EMPLOYMENT LAW BLOG EMPLOYMENT LAW BLOG Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features discussion of topics such as workplace investigations, just cause for dismissal, second chances, and what makes a manager. You can view the blog at www.

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