Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RUDNER MacDONALD TORONTO 2 | September 14, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Answer: As the issue of workplace harass- ment has gained more notoriety, there has been significant public and media attention, which has resulted in legislative changes and judicial commentary. e bottom line is that in modern society, and particularly in light of the prevalence of social media, the "work- place" is no longer limited to what happens within the four walls of the office or build- ing. Rather, it has been broadly defined to include interactions that are related to work. Just like the schoolyard bully cannot escape penalty by waiting for his victim on the side- walk outside the school fence, the workplace harasser cannot avoid discipline by keeping her harassment outside of the building in which she works. Obviously, it will be far more difficult for an employer to govern what takes place outside of working hours. However, if it be- comes aware, or ought to have been aware, of harassment that is taking place between two or more of its employees, it will have a duty to respond and take whatever steps are reasonable to address the harassment. An employer that raises its hands and pro- claims that it cannot do anything about the conduct, because it has not taken place in the office, will not receive a favorable re- sponse. By now, all employers should have poli- cies which specifically address harassment. In Ontario, legislation — including Bill 132 which will come into force in September — requires specific elements in those policies. All such policies should make it clear that they are not limited to the physical work- place, and apply to any conduct that is work- related, or can impact upon the workplace, or involves two or more employees. is includes online and social media conduct. And as soon as the employer learns of any concern, it must take action. An investiga- tion will be necessary, following which the employer can determine an appropriate course of action. Failing to investigate will be a critical mistake, as many employers have seen in recent years. e CBC is, unfortu- nately, a perfect example of this. Many of the allegations involving Jian Ghomeshi related to conduct that took place away from the physical workplace, but that does not change the fact that it can constitute workplace ha- rassment. Suspension suspending investigation Question: Does an employer have to provide a reason for a suspension pending investigation other than saying just that? Does it matter if the investigation uncovers misconduct or not? Answer: Workplace investigations have evolved dramatically in recent years. It is amazing how much time HR professionals — and employment lawyers — now spend dealing with investigations. It is well-estab- lished that an employee that is suspected of misconduct has a right to a fair and impar- tial investigation before any sanctions are imposed. As part of that investigation, the employee should be confronted with the specific allegations and given a chance to re- spond to them and provide any explanation that may be relevant. It is not unusual for an employee to be sent home on a paid administrative leave during the course of an investigation. At the outset of the investigation, the primary par- ties, being the complainant and the accused in most cases, should be clearly advised of what has taken place and what the plan of action contemplates. With respect to the accused, they should be advised of the con- cerns that have triggered the investigation. erefore, in answer to your question, the individual should not be sent home without explanation. Of course, all parties, including witnesses, should be clearly advised that the matter is to be kept confidential and not to discuss it with anyone. At the same time, employers should not make the mistake of telling any- one, including the complainant or witnesses, that everything they say will be kept confi- dential, as that may not be possible. Stuart Rudner is a founding partner of Rud- ner MacDonald LLP, a Toronto-based em- ployment law firm. He is the author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters business. He can be reached at srudner@rud- nermacdonald.com. Employee harassment outside work Question: If an employer dismisses an employee for harassing another employee but the harassment continues outside of work, can the employer be liable in any way? What should be done to avoid liability in such circumstances? It's more difficult to govern what happens outside working hours, but employers still have a duty WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as compliance under the temporary foreign worker program, managing hidden disabilities, harassment investigations, and HR and payroll implications of employee terminations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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