Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | January 2017 | News hefty regulatory fine and an award of damages from a court. Ontario's Bill 132 Bill 132's amendments to the OHSA came into force on Sept. 8, 2016. Prior to the bill, the OHSA required only that an employer implement, and train workers on, a policy and pro- gram to respond to a complaint of workplace harassment. Under Bill 132, this is no lon- ger sufficient. Amendments expand the definition of work- place harassment to include sexual harassment, place on an employer a legal obligation to ensure any complaint of ha- rassment is investigated in a manner "appropriate in the cir- cumstances," and empower a Ministry of Labour inspector to order an employer to retain an impartial, third-party investiga- tor at its own cost. An employer must ensure its workplace harassment program: • Includes procedures for a worker to report an incident to a person other than the em- ployer or supervisor, if the lat- ter is the alleged harasser. • Outlines how an incident or complaint will be investigated. • Specifies that information obtained about an incident or complaint, including identify- ing information about anyone involved, will not be disclosed unless necessary to investigate or take corrective action, or as otherwise required by law. • Explains how the complain- ant and respondent will be advised of the investigation results and any disciplinary action taken. • Be reviewed as often as neces- sary, but at least once a year. Failure to comply can result in a fine up to $500,000 per in- cident. Corporate directors can also be found personally liable and fined up to $25,000 and im- prisoned for a term of up to 12 months, or both. Ontario's 'Code of Practice' The Ontario Ministry of Labour recently published a "Code of Practice to Address Workplace Harassment under Ontario's Occupational Health and Safety Act.," which includes general in- formation, relevant OSHA pro- visions and practices, key defi- nitions, a sample policy, and an investigation template. While the practice code does not have legislative effect, it is designed to help employers meet their obligations under the OHSA. For example, it recom- mends an employer complete an investigation within 90 days of the incident or complaint (sub- ject to extenuating circumstanc- es) and communicate the results within 10 days of its completion. Duty of good faith In Keays v. Honda Canada Inc., the Supreme Court of Can- ada confirmed an employer owes an employee a duty of good faith in the manner of dismissal, which if breached can result in aggravated damages where "the employer engages in conduct during the course of dismissal that is 'unfair or is in bad faith.'" That said, courts have been clear, "the normal distress and hurt feelings resulting from dismissal are not compensable." In Boucher v. Wal-Mart Can- ada Corp., the Ontario Court of Appeal appeared to extend the duty of good faith to the manner in which an employer responds to a workplace harassment com- plaint. The employer's response to a complaint was described by the court as "reprehensible" and a breach of good faith and fair dealing, resulting in aggravated and punitive damages of roughly half-a-million dollars. Meredith Boucher, an assis- tant manager of a Wal-Mart in Windsor, Ont., was harassed by her immediate supervisor. She was consistently and increas- ingly belittled, humiliated and demeaned, often in front of co- workers. When she complained to senior management, they investigated half-heartedly and found the complaints unsub- stantiated. After another oc- currence of public humiliation, Boucher quit and sued for con- structive dismissal. The trial also determined: • Wal-Mart had a Prevention of Violence in the Workplace Policy and Harassment and Discrimination Policy which encouraged employees to re- port incidents, and promised protection from retaliation or reprisal for a complaint. • Wal-Mart paid lip service to its polices (at least in this case): • When Boucher lodged a complaint she was warned she would be held account- able if proven unwarranted • In breach of the policies, Boucher's supervisor was told of her complaints, re- sulting in intensified humili- ation and harassment. • Wal-Mart did not take steps to end the harassment by: • Not taking the complaints seriously • Finding the complaints un- substantiated despite evi- dence to the contrary • Failing to enforce its policies • Threatening Boucher with retaliation. • As a result of the harassment, Boucher's health deteriorated considerably. A jury found Boucher was constructively dismissed and awarded the following damages: • The equivalent of 20 weeks' salary, as specified in her em- ployment agreement. • $1,200,000 against Wal-Mart, including $200,000 in aggra- vated damages for the manner in which she was dismissed and $1,000,000 in punitive damages • $250,000 against her super- visor, including $100,000 for intentional infliction of men- tal suffering and $150,000 in punitive damages (for which Wal-Mart was vicariously li- able as the supervisor's em- ployer). The Court of Appeal reduced the punitive award against Wal- Mart to $100,000, and against the supervisor to $10,000. Still, these awards rank among the highest in Canadian history for employer misconduct of this nature. All told, Wal-Mart was responsible for 20 weeks' sal- ary, plus aggravated and punitive damages of $410,000. Boucher predates the Bill 132 amendments. If Wal-Mart's conduct had taken place today, the retail giant may not only be liable for breaching its duty of good faith in the manner of dis- missal, it may also be charged for violating the OHSA and face sig- nificant penalties. Moral of the story Gone are the days of unrequited bullying and harassment in the workplace. A worker is entitled to have a complaint properly investigated, and an employer is expected and required to do so. Every employer should have a written policy and protocol, tailored to the particular work- place, and designed to minimize ad hoc or unintentional missteps which can lead to liability. A large employer should en- sure enforcement is consistent and fair across the organization. This can be difficult when opera- tions are in various jurisdictions, locations and departments, and under many supervisors. A large employer might therefore con- sider two options, or a combina- tion of both: Have as a standing resource an external investigator who can help determine wheth- er and what type of investigation is "appropriate" and, where nec- essary, conduct it; and identify and train an internal team whose responsibility it is to respond to a complaint of harassment (with advice from the external investi- gator, as necessary). For a smaller employer, which may lack the resources to train a team or conduct an investiga- tion internally, using an external investigator may be prudent. An external investigator — often a lawyer — is an impar- tial expert, skilled at identifying what is relevant and eliciting and evaluating evidence (includ- ing assessing credibility), and knowledgeable in the law. For more information see: • Keays v. Honda Canada Inc., 2008 CarswellOnt 3743 (S.C.C.). • Boucher v. Wal-Mart Canada Corp., 2014 CarswellOnt 6646 (Ont. C.A.). Jessica Wuergler is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Jessica can be reached at (416) 603-0700 (Main),(416) 420- 0738 (24 Hour) or by visiting www.sherrardkuzz.com. Navigating < pg. 1 Harassment can lead to big damage awards

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