Canadian Employment Law Today

January 17, 2018

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 2018 2 | January 17, 2018 Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2018 Have a question for our experts? Email Requirement to investigate sexual harassment complaints Question: What is the legal requirement for an employer to deal with a sexual harassment complaint, regardless of whether it's determined there was harassment or not? Answer: Employers in Canada are subject to a statutory obligation to provide a harass- ment-free workplace, whether codifi ed in provincial or federal human rights legisla- tion, occupational health and safety legisla- tion, employment standards legislation or, in some cases, a combination of this type of legislation. Provinces such as Manitoba, Saskatch- ewan, and Ontario, as well as the Northwest Territories and Nunavut, treat sexual ha- rassment and personal harassment (or col- lectively "harassment") as an occupational health and safety hazard. As with any other workplace hazard, occupational health and safety legislation in these provinces and ter- ritories generally mandates that employ- ers establish workplace policies to protect workers from harassment, and such policies must meet specifi c criteria. In other prov- inces, harassment is dealt with by human rights legislation which often requires an employer to develop a harassment policy. Notably, in British Columbia, illness and in- jury sustained by harassment is recognized under workers' compensation legislation as a compensable injury. It is important to keep in mind that the liabilities associated with workplace harass- ment are not limited to OH&S or human rights legislation. Such behavior may also cross the line into criminal or civil liability. Practically speaking, employers should treat harassment complaints as they would an occupational health and safety complaint. On the front end, supervisors, managers, and employees should all be trained on the workplace harassment policy and its proce- dures. Employees must be advised that they can access these procedures without repri- sals. Employers should address harassment complaints promptly and take all complaints they receive seriously, which includes un- dertaking some form of investigation into the complaints. In some jurisdictions, such as Saskatch- ewan, legislation explicitly imposes a duty on the employer to investigate allegations of harassment. However, whether or not the duty to investigate is specifi cally pro- vided for in legislation, investigation should always follow an allegation of harassment in order for the employer to meaningfully fulfi ll its duty to provide a harassment-free workplace (and, as much as possible, avoid liability if harassment has occurred). e employer should assign an investigator who is as independent as possible from the com- plainant and the alleged harasser (the "re- spondent"). e investigation must be fair to both parties. e respondent has a right to know what the allegations are and to have a full opportunity to respond. Documentation is also critical. e in- vestigator must review all relevant evidence available to it, including any documents, tes- timony, video footage, or any other forms of evidence. e investigation should protect the confi dentiality of the parties and be car- ried out on a "need to know" basis. Once the investigation is complete, the investigator should prepare a written report with an out- line of the allegations, facts, fi ndings, analy- sis and conclusions. e parties should be advised of the investigator's fi ndings. If the employer determines that the com- plaint has been made out, it must take cor- rective action. It is very likely that the com- plainant will experience ongoing negative impacts from the harassment. e employer has a duty to correct any such impacts and to provide support to the complainant. For example, the respondent may be subject to discipline up to and including dismissal or the complainant or respondent may need to be relocated or to receive counseling. Discipline should refl ect the severity of the harassment. In severe or repeated cases of harassment, the employer may be justifi ed in terminating the employee. However, not all incidents of harassment will warrant ter- mination. Discipline short of termination, including a written warning or suspension, may be more appropriate depending on the circumstances. All of the surrounding cir- cumstances, including the employee's posi- tion, seniority and prior disciplinary record, should be taken into consideration in decid- ing what discipline is appropriate. Level of employee dishonesty Question: If an employee is caught lying to the employer, should the employer factor in what the lie was about when determining discipline, or can all employee dishonesty be treated similarly? Answer: All employees owe a duty of faith- fulness and honesty to their employer. As with other misconduct, the level of disci- pline will vary and must be measured in the context of the particular employment relationship. However, the case law gener- ally recognizes that dishonesty goes to the heart of the employment relationship, which makes dishonesty particularly serious. e magnitude of the lie is a factor to take into account in determining discipline. Dis- honest conduct which is prejudicial to the interests of the employer or is incompatible with the employee's duties, may be just cause for dismissal. In some workplaces, employee dishonesty is an extremely serious off ence. Employees in the retail industry, for exam- ple, work independently, handling cash and merchandise on a regular basis. In this type of workplace, termination is often viewed as the appropriate penalty unless the decision maker can be confi dent that the trust rela- tionship can be repaired. e importance of honesty also increases with the degree of responsibility and discre- tion attached to the employee's position. For example, integrity and honesty are critical to an employment relationship between the employer and a supervisor or manager. In cases involving theft by a supervisor, even if the item stolen is of little value, this will not necessarily save someone with a higher stan- dard of conduct and integrity. It is also less likely that the trust relationship can be repaired where the employee refuses to accept responsibility for the misconduct. Lack of candor and forthrightness can also lead to an inference that the act was premeditated, as in UFCW, Local 401 and Sobey's West Inc. All of the above factors were recently be- fore the Saskatchewan Court of Appeal in Wholesale Department Store Union v. Yor- kton Cooperative Association. A supervisor closed a retail gas store early and falsifi ed her time sheets on several occasions. She also directed a subordinate to falsify his time sheets. When the employer investigated, the supervisor lied and denied any wrongdoing. An arbitrator set aside her termination, but both the Court of Queen's Bench and Court of Appeal upheld the termination. According to the Court of Appeal, the su- NATURE on page 6 ยป

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