Canadian Employment Law Today

It's never okay — Preventing violence and harassment in the workplace The battle against workplace harassment and violence is heating up — on the news, in the courts and in legislatures BY THOMAS GORSKY H istorically, employers have tend- ed to diminish the importance of harassment in the workplace. e Lori Dupont murder in 2005 triggered legislation in Ontario — Bill 168 — recognizing harassment and violence as pressing and important social problems. Other Canadian jurisdictions followed suit, such that, today, few question the legitima - cy of harassment and the violence to which it can lead as important workplace issues. In the past, harassment and violence in the workplace was often swept under the rug. But that attitude is changing, both with employers who recognize the im- portance of a smoothly functioning work- place and happy employees, and with lawmakers who are reflecting a growing sentiment towards worker and human rights which is making harassment and violence unacceptable — both at work and in society as a whole. But recent events in the news and in front of tribu- nals have shown that there is still a ways to go — and employers must play a part in it. Recognition of harassment as part of a continuum Legislated obligations have typically in- cluded the following seemingly straightfor- ward requirements: • Take every reasonable precaution to pro- tect workers • Provide training and supervision • Create and maintain a written policy • Perform an assessment in respect of risks of workplace violence Following enactment of these rules, con - fusion arose around the legislated differen- tiation between workplace harassment and workplace violence. Understandably, em- ployers drew distinctions between violence, s being more serious, and harassment as be- ing less so. is led some employers to ques- tion how much attention is truly required to respond to a "mere" harassment complaint, as opposed to a complaint about actual vio- lence in the workplace. However, as was the case for Lori Dupont, the reality is that most situations of violence in the workplace start with a series of comparatively less serious incidents of harassment, which progres - sively escalate. How seriously an employer responds to an incident of harassment can operate as a valuable deterrent and prevent violence from erupting. Despite some fuzziness in the wording of legislation and regulations, case law has in - creasingly recognized harassment as being harmful and destructive as actual violence. Existing legislation is being liberally con- strued to require employers to treat harass- ment complaints with the same degree of attention as violence. In practical terms, this has meant that when a worker makes a harassment com - plaint, even though legislation does not al- ways clearly spell this out, an employer is generally obliged to take all reasonable steps to investigate the complaint, including: • Appointing an investigator (internal or ex - ternal) • Interviewing witnesses and taking state- ments • Making findings and implementing disci- pline, where appropriate. By following these basic procedures, an employer can prevent seemingly minor in- cidents of harassment from spiralling out of control. e Ghomeshi scandal Unfortunately, legislative rules and regu- lations have proven insufficient to prevent a number of spectacular situations, including the Jian Ghomeshi scandal, in which a radio personality's abuse, harassment and sexual misconduct were condoned by the manage - ment of an esteemed major public corpora- tion, the CBC, over a long period of time. Released this year, the Rubin Report — authored by a prominent employment lawyer and workplace investigator — iden- tified systemic weaknesses at the CBC even though the broadcaster appeared to have all required policies, procedures and safe- guards in place. e ultimate cause of this failure was found to be rooted in "host cul- ture" which elevated Ghomeshi to the status of media star, and which enabled him to be exempt from the rules which governed oth- ers at the CBC. e lesson employers can learn from this scandal are primarily two-fold: First, an organization cannot allow anyone to be elevated to a special status in which fun - damental, non-negotiable rules applicable to 99 per cent of employees are relaxed or abandoned for the few. A code of conduct cannot operate satisfactorily, if not applied to all. Second, once aware of misconduct, management has an obligation to investi - gate, and cannot turn a blind eye. According to the Rubin Report, several CBC managers were aware of some kind of misconduct on Ghomeshi's part — whether from third par - ties or their own observation — yet chose to do nothing (or nothing meaningful). is turning a blind eye attracted the harshest criticism, resulting in a finding the CBC condoned Ghomeshi's conduct. Hydro One and instant infamy With the Internet and viral videos, one does not have to be a media celebrity to become exposed to public scrutiny. In the recent — and now infamous — Hydro One incident, one of its workers vigourously encouraged shouting sexist obscenities at a TV report - er on-air, which became a viral incident when caught on video and released to the internet. Aside from the issue of how this behaviour reflected on Hydro One's public reputation, such conduct can raise concerns of co-workers who may develop apprehen - ON NOV. 12, 2005, nurse Lori Dupont was murdered by a physician with whom she worked at a Windsor hospital. The murder did not occur out of the blue. It was the culmination of a series of escalating incidents of harassment which were no secret to hospital management. But management had done little to nothing to protect Dupont. At that time, with the exception of Quebec, no jurisdiction in North America had laws in force to specifically address violence or harassment in the workplace. Today, things have changed. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2015 CASE IN POINT: WORKPLACE VIOLENCE

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