Nelligan Law gratefully acknowledges the contribution of Grace Tran, Student-at-law, in writing this blog post.
COVID-19 has resulted in many individuals working from home. But does working from home stop workplace harassment? Not necessarily.
The Internet, technology, mobile devices, and social media have changed where “work” occurs. “Work” is no longer compartmentalized and defined by distinct hours and a physical space. The boundaries increasingly blurred. As a result, employers and employees must change their understanding of how and where workplace harassment occurs.
What Is Workplace Harassment?
Under the Occupational Health and Safety Act (“OHSA”), workplace harassment is defined as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. A similar definition is adopted in the Ontario Human Rights Code.
Bill C-65, set to come into force in 2020, defines workplace harassment as any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.
Responding to Workplace Harassment
- What should I do if I am being harassed online?
- The Canadian Centre for Occupational Health and Safety recommends keeping a log of any harassing activity, saving all offending communications as evidence, and reporting the harassment to your employer.
- Do I have to keep working with my harasser after I have filed a workplace harassment complaint
- Each case will turn on its own facts. However, Sodexo Canada v United Food, a 2019 labour arbitration award, allowed an employee to avoid her harasser pending the outcome of her case. This is because (1) her case had merit (2) making these arrangements would not cause the employer undue harm.
- What are alternative options if my employer does not properly investigate my workplace harassment complaint?
- If an employer fails to comply with its duties to investigate under the OHSA, employees may request a Ministry of Labour (“MOL”) investigation. Employees may call the Ministry of Labour Health & Safety Contact Centre at 1-877-202-0008 or visit the MOL website for more information.
- Further, an employee who has been disciplined, suspended, or threatened for exercising their rights under the OHSA may file a complaint with the Ontario Labour Relations Board.
- What are my legal options if my employer does not properly investigate my workplace harassment complaint?
- You should obtain the assistance of an employment lawyer to explore the viability of a claim. An employment lawyer will be able to outline your various options.
What Are Employers’ Obligations?
- What can be done to prevent workplace harassment?
- According to the OHSA every workplace must have an anti-harassment policy and a way to handle complaints. Policies should be updated annually. and training must be provided to both employees and managers. Employers may want to consider a policy regarding communications over company-issued devices or company servers. Employers may also want to consider creating a social networking policy outlining best practices, acceptable uses in the workplace, and consequences of misuse.
- What should employers do when they receive a workplace harassment complaint?
- Employers must 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 update the employee on the investigation and actions taken to resolve the situation.
- What could happen if a workplace harassment complaint is inadequately addressed?
- Failure to comply with the OHSA can result in fines of up to $1,500,00 for corporations and $100,000 (or 12 months imprisonment) for individuals. Damages may also be awarded against employers who have failed to adequately address workplace harassment. In Boucher v. Walmart Canada, Ms. Boucher’s manager subjected her to a pattern of verbal abuse over an extended period of time. Walmart refused to take her complaints seriously. In 2014, the Ontario Court of Appeal awarded Ms. Boucher damages equivalent to 20 weeks salary and $300,000 of aggravated and punitive damages against Walmart.
COVID-19 may have changed what “work” looks like for many of us. But working from home does not change an employer’s obligations nor an employee’s rights as they relate to workplace harassment.
Contact one of our experienced employment lawyers today if you have any questions surrounding workplace harassment.