Canadian Employment Law Today

with Brian Kenny Ask an Expert MacPherson LesLie and TyerMan Regina Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2014 2 | September 17, 2014 Answer: Whether a co-worker should be separated from the victim of harassment de- pends on a variety of factors and will largely depend on the circumstances of a given case. As will be discussed below, there is no single measure an employer must use in address- ing such conduct. Rather, an employer's best mechanism in dealing with workplace ha- rassment is a solid harassment policy that is effectively communicated and consistently enforced. Employers have both a common law and statutory obligation to ensure employees are not subject to harassment, abuse, or mistreat- ment in the workplace. Employers are there- fore responsible to take all necessary steps in order to prevent the recurrence of work- place harassment and to enhance the work environment, as established by the Supreme Court of Canada in Robichaud v. Brennan. Where allegations of workplace harassment are made, employers are well advised to en- sure they have taken complaints seriously and have conducted proper investigations. Workplace harassment is considered an occupational health and safety issue that poses a potential risk to the physical and mental health and safety of employ- ees. While Occupational Health and Safety (OHS) legislation varies from jurisdiction to jurisdiction, the common thread is that an employer has a duty to take reasonable steps to ensure the safety and wellbeing of employees. What constitutes reasonable steps will depend on the relevant jurisdic- tion and the nature of the harassment. e legislative duty imposed on employers to take every reasonable precaution to protect workers comes down to a proper workplace harassment policy. ese steps are gener- ally not outlined in the legislation. is is because legislators and the courts recognize that necessary steps will vary depending on a given situation and workplace. In Ontario, employers are mandated to de- velop and maintain a workplace harassment policy and review the harassment policy on an annual basis. Employers must have a program in place to ensure a policy is prop- erly implemented. e harassment program serves both a procedural and educational purpose. Harassment programs must set out the measures and procedures for workers to report incidents of harassment, describe how the employer will investigate incidents of harassment, and provide opportunities for workers to learn the contents of the policy and the program itself. In Saskatchewan, employers have two principal responsibilities when it comes to preventing harassment in the workplace. e first measure is to develop and implement a written harassment policy that conforms with the requirements of the regulations. Second, employers must ensure, as much as is reasonably practicable, that the employees are not exposed to harassment with respect to any matter or circumstance arising out of the worker's employment. What will consti- tute a "reasonably practicable" measure will consider whether there is a "gross dispropor- tion" between the benefit of the duty with the cost, time, and trouble of the measures to se- cure the duty. It is clear that the reasonableness require- ment will vary depending on a given situ- ation. us, where an incident is relatively minor, it may not be reasonably practicable that the employee can be kept separate from the wrongdoer, depending on the size of the workforce, the nature of the work, and any potential risks to other employees. While harassment policy requirements will differ from province to province, it is possible to elicit certain common features in Canada's OHS legislation. Workplace poli- cies must be clearly communicated to man- agement and employees. Employers should provide harassment prevention training to management and employees. Policies should set out what does and what does not consti- tute harassment. Mechanisms for addressing workplace harassment and sanctions should be clearly set out. e policy should inform employees of their rights and how to raise is- sue of harassment. Finally, employers have an obligation to act promptly to stop harassment and to prevent it from recurring. is is key in ensuring that harassment policies are properly enforced and implemented. While it may be unreason- able to separate the harasser from the victim, employers must be careful to monitor the situation. Firstly, an employer's obligation to take necessary steps to prevent the recurrence of harassment is an ongoing duty. Secondly, employers should be alert to the potential of reprisals against victims who came forward with the complaint. irdly, if the harassment continues or escalates to the point where an employee feels compelled to resign from her position, the employee's resignation could be treated as constructive dismissal entitling the employee to common law damages. Keeping a harasser away Question: If an employee is found to have harassed another em- ployee, is there a legal requirement to keep them apart? If they continue to work together is their consent necessary? Assault of employee by outsider Question: Is the employer liable if an outsider gains access to the workplace and assaults an employee, even if the employer increases se- curity following the incident? Recently, traditional concepts of Occupational Health and Safety (OHS) matters have been expanded to include workplace violence. Legislators have recognized that employees working in certain fields may face an increased risk of workplace violence. Examples of such high-risk fields include health care, corrections services, and retail op- erations. Similar to the first question, the issue really comes down to prevention and an effective workplace violence policy. Provincial OHS legislation generally imposes three broad duties upon employers: Risk assessment, the implementation of workplace violence procedures and policies, and a general duty to respond to in- cidents and instruct workers in regards to workplace violence. Provincial legislation often has a definition of workplace violence in order to encompass real or potential violence by a person, other than a worker, that causes injury to a worker or gives a worker a real cause to believe she is at risk of injury. For example, in Saskatchewan, work- place violence is the attempted, threatened or actual conduct of a per- son that causes or is likely to cause an injury. is includes any threat- ening statement or behavior that gives a worker reasonable cause to believe the worker is at the risk of an injury. Provincial legislation generally imposes an obligation on the part of employers to conduct a risk assessment for risk of injury to workers from violence arising out of their employment. In British Columbia, for example, a risk assessment must consider prior experiences in the subject workplace, occupational experience in similar workplaces, and the location and circumstances in which the work is performed. In Saskatchewan, some industries that must have a violence policy and prevention plan include: health care providers, police services, crisis counselling services, late night retail premises, financial ser- vices, taxi services and transit services. erefore, if an employer has failed to conduct a risk assessment in accordance with provincial re- quirements, increased security after an incident will not be sufficient to avoid liability. coMPLy on page 6 »

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