Canadian HR Reporter Weekly

3 Canadian HR Reporter, a Thomson Reuters business 2018 February 28, 2018 founding member of French Law Offices in St. John's. "ere's nothing really, from a proactive standpoint obligation, on the employer to have a policy or do an investigation when something comes forward, or any of those things that we are seeing from other jurisdictions." e Canada Labour Code and Ontario (under Bill 132) specifically address sexual harassment, with the latter obliging employers to have a program and do investigations, he said. "All of those positive obligations really don't exist in Newfoundland and Labrador," said French. "Of course, if you're an employee and you're mistreated, you have the human rights avenue, you certainly have claims and torts for harassment and you can sue the employer for not providing a proper environment and all that stuff, but I don't think your claims are as strong as they would be in Ontario." at's one of the advantages to Newfoundland and Labrador's proposed legislation, said Ross. "One would like to think the process is a lot more expeditious if it's in the workplace as opposed to having to take it through the human rights process, which is a lengthier endeavour, and costlier." With Ontario bringing in Bill 132 in 2016, it felt almost redundant and political when the government expanded the definition of workplace harassment and sexual harassment, said Shana French, a lawyer at Sherrard Kuzz in Toronto. "But the teeth that it put in and the awareness that it raised has really had a profound impact… It's helpful to have something as a reference point so (employers understand) their obligations... to have a bit of a playbook." However, Ontario employers may tick the appropriate boxes when it comes to having a policy and providing training around harassment, but they're struggling when it comes to the investigation piece, said French (wife of Greg French). "Employers are incurring a lot of expenses and there's confusion about when to conduct an investigation, who a qualified person is, 'Can I have someone raise an issue in a discipline meeting…?' Employers are struggling a little bit with right-sizing those obligations with the practicality of it." Protecting the worker However, it's not clear these kinds of provincial changes would help when it comes to a situation like that faced by Gillis, said Greg French, as the attempt at a conviction was done under the Criminal Code of Canada, which is federally regulated. "e definition of criminal harassment doesn't go far enough to bring in sexual harassment in the context of what happened here," he said. And while a reporter at an off-site location conducting an interview would still be considered at a workplace, the fact that this type of heckling wasn't a routine occurrence is an issue, said Greg French. "If (Gillis) had been sent, time and time again, to a particular worksite, where she was harassed over time, there's a reasonable basis NTV didn't do enough to protect her and provide a safe work environment and all those things. But the fact that she's out as the one-off and some idiot runs by and yells this at her, I'm not sure… there's much (the employer) could have done. So I'm not sure any provincial legislative change (is) going to impact that at all." If, however, Gillis or anyone else was going to the office or a regular worksite and was getting picked on every day, with the employer not doing anything, "certainly having some of those provincial laws on the books, where the employer has an obligation to provide training programs to employees and doing investigations, and all those things, and if they didn't do that, then Heather or the employee certainly would have a good claim against the employer," he said. More than policies But underneath the law, there needs to be a clear system and process to have respectful workplaces, according to Bennett. "Women have the right to feel safe and (not be) victims of bullying and intimidation, and there needs to be a clear process and protection for them so they can bring forward concerns and questions," she said. "I also think there should be training about what's acceptable and not acceptable, and we don't assume that people in the workplace understand these rules unless we tell them." It's not just a matter of having the policies, according to Ross. "It's not just words on paper, it's got to be about training, the processes in place to address the issue, and it's got to be socialized amongst the people that it applies to. And to know that if you do call somebody on it, they have your back, it's not going to come back to bite you." It's helpful to have something as a reference point so employers understand their obligations." ON THE COVER Reporter Heather Gillis snapped a picture of the truck whose driver yelled a vulgar remark at her in St. John's in 2017. "There's all kinds of workplaces that are used by men and women, and there needs to be laws covering all of those workplaces," says Cathy Bennett, member of the Newfoundland and Labrador House of Assembly.

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