When experiencing harassment or bullying in the workplace, it may feel like there is no way out. Thankfully, the law in Ontario provides safeguards to ensure that individuals do not have to tolerate this type of work environment.
Nelligan O’Brien Payne gratefully acknowledges the contribution of Melanie Sutton, Student-at-Law, in writing this blog post.
Employees have a right to a workplace free from harassment and bullying. Ontario’s Human Rights Code (Code) defines harassment as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” A very similar definition is used in Ontario’s Occupational Health and Safety Act (Act) to define workplace harassment. Harassment is typically characterized as a pattern of unwelcome, irritating comments or conduct. One particularly egregious stand-alone incident may also be sufficient to meet the definition of harassment.
What does my employer have to do?
- The Act imposes a duty on employers to provide a safe and healthy work environment.
- Employers are required to investigate and address complaints of workplace harassment. Every workplace must have an anti-harassment policy and a mechanism in place to handle complaints. Employees and managers must also be trained on these policies to ensure they know how to respond to incidents of harassment.
- When a complaint is made, the employer must take it seriously and take steps to investigate and resolve the complaint in a timely manner, making every effort to provide or restore a healthy work environment for the employee. The employer should also provide the employee who filed the complaint with updates on the investigation and actions taken to resolve the situation.
- Importantly, an employer does not have to implement the solution suggested by the complainant. The resolution may not be the employee’s favourite option and it may not be perfect. However, an employer must balance a complex mixture of employee rights and business efficiencies. The most workable resolution may be inconvenient or unpopular, while still resolving the issue.
Is My Work Environment Poisoned?
- Where the employer is aware of harassment, discrimination or bullying in the workplace and either fails to address it or actively participates in it, the work environment may be described as poisoned or toxic. Such an environment is often one that is intolerable and may result in little chance that the situation can be resolved through an internal complaint process. Generally, a series of incidents, rather than just one isolated incident, is required to establish a poisoned work environment. However, one particularly serious event may be enough.
- Note that an employer can criticize the work of an employee provided they do so in a reasonable manner that does not rise to the level of bullying or harassment. Constructive feedback on work quality and job performance almost never constitutes a poisoned work environment.
- If you feel that your work environment has become poisoned, we always recommend seeking legal advice regarding your potential rights and remedies.
What To Do If Experiencing Harassment?
- If an employee is working in a poisoned work environment which the employer has failed to remedy despite its awareness, the law may deem them to have been constructively dismissed. This would entitle them to resign, claim they are doing so on account of the constructive dismissal, and then seek their termination entitlements. A constructive dismissal, put simply, is when the employer has not formally terminated an employee, but their actions are such that the law will treat those employees to have been terminated.
- However, prior to taking such a position and certainly prior to resigning, an employee who believes they have been constructively dismissed should speak to one of our employment lawyers. The determination of whether a situation constitutes a poisoned work environment sufficient to rise to the level of a constructive dismissal is very complex and depends on the entirety of the circumstances.
- If an employee chooses to leave their employment voluntarily, the employer is not obligated to pay the employee anything except wages for time worked and any outstanding vacation pay that may be owing. However, if an employee is constructively dismissed, the employer must provide that employee with their termination entitlements, whatever those may be.
- But employees must be careful: if a judge determines that the work environment was not poisoned, and that no constructive dismissal took place, the employee will be deemed to have resigned their employment voluntarily and will be entitled to nothing. Resigning from employment before obtaining legal advice may be very detrimental.
If you are experiencing harassment or discrimination in the workplace, contact one of the experienced lawyers in our Employment Law Group before taking any action.