Canadian HR Reporter

CANADIAN HR REPORTER May 30, 2016 EMPLOYMENT LAW 5 Workplace violence and harassment – employer obligations continue to evolve Few would disagree the workplace should be safe and free from violence and ha- rassment of any kind. Recent high-pro- fi le sexual harassment cases demon- strate the devastating impact on indi- vidual employees, as well as the fallout to an organization, when a culture of harassment is permitted to exist. Defi ning the rights of employees and the obligations of employers has evolved via legislation and the decisions of courts and various administrative tribunals. For em- ployers, the importance of under- standing and responding to these obligations has never been greater. In Ontario, Bill 132, also known as the Sexual Violence and Harass- ment Action Plan Act (Support- ing Survivors and Challenging Sexual Violence and Harassment), signals the continued evolution of a more informed, transparent and robust legislative response to issues of workplace harassment. The legislation broadens the defi nition of workplace harass- ment to include "sexual harass- ment" and expands the obliga- tions on employers with respect to workplace harassment poli- cies. Eff ective September 2016, employers will be required to re- view and update written policies or programs to ensure they deal with how investigations and pri- vacy concerns will be balanced. Requirements include: how in- formation about an alleged inci- dent is to be obtained (including individuals involved); when and how information will be disclosed; how the worker and the alleged harasser will be informed of the results of the investigation; any corrective action that has been or will be taken; and inclusion of measures for the reporting of harassment where the individual designated by the employer for the reporting of the harassment is the alleged harasser. Perhaps most importantly, Bill 132 provides inspectors with the power to make orders that the em- ployer, at its own expense, retain an impartial third-party investi- gator to conduct an investigation into a complaint of harassment. Bill 132 is similar in intent to leg- islation across Canada. It seeks to: aggressively expand the defi nition of harassment in the workplace; refi ne the investigation procedure; and attempt to ensure transparen- cy of the process and the protec- tion of the worker who complains. What is unclear is how this heightened sensitivity, and ad- ditional procedural protection, will impact the workplace. While no organization would question the importance of ensuring and maintaining a harassment-free workplace, the additional obliga- tions and powers that may come with increasing legal obligations, not to mention potential fi nancial and human resource cost, raise a host of concerns. Employers can at least take comfort that in defending against allegations of improper or wrong- ful termination, courts, arbitra- tors and tribunals will view any al- leged conduct that falls within the defi nition of workplace or sexual harassment very seriously. In the much-quoted case of Kingston (City) v Canadian Union of Public Employees, Local 109, arbitrator Elaine Newman was faced with deciding whether the termination of an employee for uttering a death threat to a co- worker was cause under the col- lective agreement. is was an early interpretation of amendments to the Ontario Occupational Health and Safety Act (known as Bill 168) and pro- vided considerable insight into the criteria used to determine cause where there is an allegation of violence or harassment in the workplace. In upholding the city's decision to terminate, Newman provided a framework for "with cause" ter- mination for violence in the work- place. Specifi cally, she stated that employers cannot take a passible stance to allegations of violence and hope the issue sorts itself out. reats were serious and needed to be reported, investigated and addressed. Equally, the legislation impacts the manner in which an arbitrator will assess the reason- ableness of an employer's decision to terminate an employee in the circumstances. The legislation imposes additional factors to be considered when assessing the reasonableness and proportion- ality of the decision to terminate. In the recent arbitration case of United Steelworkers of Ameri- ca, Local 9548 v Tenaris Algoma Tubes Inc, arbitrator Laura Tra- chuk addressed a termination for harassment and violence in the workplace that took place via social media and could be consid- ered "off -duty conduct." An employee of Tenaris (a crane operator) was unhappy with the performance of a female co- worker. He went on Facebook and complained and although he did not use her name, he mentioned a nickname and references to her appearance that made her readily identifi able. After reading the Facebook post, another employee suggested performing a physically aggressive act against the female employee to which the crane operator agreed and further suggested that a vio- lent and humiliating sex act be infl icted on the female co-worker. Algoma terminated the crane operator. Trachuk's comments summarize both the approach to sexual harassment and violence in the workplace and the obligations of the employer: "An employee does not neces- sarily get one free sexual harass- ment before he loses his job. e grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men 'joke' about the sexual vio- lence they should inflict on a woman, she can reasonably be concerned that they may actually hurt her… (T)he grievor sexually harassed X and created a poisoned work environment. e grievor is not a long-term employee and the company could have little confi - dence that he could be trusted to never harass someone else. e company is responsible under the Human Rights Code, OHSA and the collective agreement for main- taining a workplace free of harass- ment and, in these circumstances, reinstating the grievor would be contrary to that goal, even if he were assigned to a diff erent shift from X. is is not an appropriate case for progressive discipline. I do not fi nd that the company vio- lated the collective agreement by terminating the grievor's employ- ment. e grievance is denied." Algoma was able to rely on its policies concerning workplace violence and harassment to prove just cause for the termination of the employee based on his ac- tions against his co-worker, even though those actions were via social media and the termination wasn't based on the concept of "progressive discipline." Whether a court, arbitrator or tribunal will do so in similar circumstances depends on a host of factors, in- cluding the content of the poli- cies concerning social media use, harassment and off -duty conduct, as well as the specifi c nature of the conduct in question. What is clear is the stakes have never been higher. Failure can re- sult in a workforce that may lose faith in the employer's ability to provide a harassment-free work- ing environment, which leads to poor morale, higher absenteeism and possible legal liability. The response by employers should be one of vigilance, rea- sonableness and diligence. Some helpful tips include the following: • Be compliant: Review and im- plement any legislative require- ments. Assess risk for all forms of harassment, violence and do- mestic violence in the workplace. • Improve or develop a policy: Address each risk and how it will be dealt with while respecting the privacy rights of all employ- ees involved (even the alleged ha- rasser). Bring in the joint health and safety committee, workers, supervisors and experts if nec- essary. • Develop an action plan: It should address the process for the investigation of complaints, the assessment of risks and the consequences of non-compli- ance. • Understand the investigation process: e risk of conducting a fl awed or improper investiga- tion is considerable. In Ontario, an offi cer may order an investiga- tion based on his review of the circumstances. Where appropri- ate, this may mean a third-party investigator at additional cost. • Don't pre-judge: Like many situations where allegations of improper conduct are made, consider the evidence carefully. Don't assume. Make rational de- cisions based on available infor- mation and evidence. • Be compassionate: Allegations of harassment or violence are dif- fi cult to make and can be devas- tating to both the victim and the alleged harasser. e law will continue to evolve in this area, as will the obligation of employers to ensure compli- ance. Both employers and em- ployees hope the result will be a movement towards a workplace free of harassment and violence. And that is worth the eff ort. Lorenzo Lisi is the practice group leader of the labour and employment group at Aird & Berlis LLP in Toronto. He can be reached at llisi@airdberlis. com or (416) 865-7722. Lorenzo Lisi LEGAL VIEW employer obligations continue to evolve employer obligations continue to evolve Few would disagree the workplace should be safe and free from violence and ha- rassment of any kind. Recent high-pro- fi le sexual harassment cases demon- strate the devastating impact on indi- vidual employees, as well as the fallout to an organization, when a culture of The Employment Contract: From Marriage to Divorce Tuesday, September 27, 2016 9:00 – 10:00 a.m. ET Employee vs. Independent Contractor/Consultant • What are the differences? • What are the risks? • Managing the contract and the relationship Employment Agreements • Termination provisions and fixed-term contracts • What to include and how to include it • Enforceability and dealing with post-termination entitlements Post-Employment Obligations • Restrictive covenants? Can they be enforceable? • Confidentiality and intellectual property – protecting the business. What can you do? What are the remedies? 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