Canadian Employment Law Today

April 12, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Meghan McCreary Ask an Expert MACPHERSON LESLIE & TYERMAN REGINA Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2017 2 | April 12, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Answer: Yes, an employer does have an ob- ligation to independently investigate a ha- rassment complaint brought by an employ- ee, even if the complaint was also brought to the police who found no merit in it. Under most occupational health and safety legislation in Canada, employees have the right to be free from workplace harass- ment, and employers have a corresponding duty to protect employees from harassment and to investigate any threat to workplace health and safety caused by harassment. In addition, human rights legislation through- out Canada provides that employees have a right to be free from harassment on a pro- hibited ground of discrimination — which generally includes religion, creed, marital status, family status, sex, sexual orientation, gender identity, age, colour, ancestry, na- tionality, place of origin, and race. In union- ized workplaces, these protections are also often found under the parties' collective agreement. As a result, there is an independent duty on employers to investigate any workplace harassment complaints which are brought forward to determine if they constitute a threat to workplace health and safety or con- stitute discriminatory harassment. A failure to do so can result in legal liability pursu- ant to occupational health and safety and/ or human rights legislation, as well as other liabilities which may arise if harassment did occur (such as a claim for lost wages or dam- ages for constructive dismissal). It is also important to note that the stan- dard for proving workplace harassment is the civil standard, meaning harassment can be found if it is proven on a balance of prob- abilities. is is a lower standard than ex- ists in the criminal law world. e criminal harassment standard means the complaint must be proven beyond a reasonable doubt. erefore, even if the police fi nd no merit in a criminal harassment claim, it is still pos- sible that workplace harassment pursuant to occupational health and safety legisla- tion, human rights legislation, or the com- mon law did occur. As such, if an employee brings a workplace harassment complaint, employers should dutifully investigate the complaint regardless if the complaint was also brought to other sources. Doing so gives the employer the opportunity to ad- dress any risks to workplace safety and to counter the potential liabilities that may fl ow from those risks. Investigating harassment claim dismissed by police Question:Does an employer need to investigate an employee's harassment complaint if the employee also complained to police and the police found no merit? Time off to vote Question: Does an employer have to grant an employee's request for time off to go vote in an election if the polls are open outside of the employee's scheduled shift? Answer: At election time, employers are required to fulfi ll certain obligations un- der provincial or federal elections legisla- tion (in most jurisdictions this legislation is called the Elections Act). All employees who are eligible voters are entitled to have three consecutive hours during which to vote while polls are open. Time off with pay must be provided to the extent necessary to allow three consecutive hours for voting. ese three hours are to be granted at the convenience of the em- ployer. Most elections legislation in Canada pro- hibits an employer from deducting pay or imposing any penalty for time off to vote. No employer may pay an employee less than the amount the employee would have earned on polling day if they had continued to work during the time allowed for voting. is is the case regardless of whether the employee is paid on an hourly, piece-work, salaried or any other basis. e law does not require employees to request time off to vote, so employers are encouraged to proactively address their employees' right to vote on election day. An employer is not required to provide paid time off if an employee has three consecu- tive hours free from work while the polls are open. For example, an employee who completes work at 5:00 p.m. will have three consecutive hours for voting and is not en- titled to time off . If, however, an employee works from 9 a.m. to 5:30 p.m., that em- ployee would be entitled to paid time off to vote. To ensure minimal disruption to the employee's regular work day, while at the same time complying with the law, an em- ployer in these circumstances could allow the employee to leave work one-half-hour early, at 5 p.m. Meghan McCreary is a partner practic- ing labour and employment law with MacPherson Leslie & Tyerman LLP in Regina. She can be reached at (306) 347- 8463 or Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, defi nition of the workplace, fi xed-term contracts, and workplace harassment. You can view the blog at

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