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PILING CANADA

The Legal Costs of Workplace Harassment

The importance of diversity and inclusivity in the workplace
Written by Janna Young and James Jeffrey; Burnet, Duckworth & Palmer LLP
March 2021

Photo: feodora52/123RF

Workplace harassment has wide-ranging consequences on the mental health and well-being of workers and, in turn, an employer’s productivity and reputation1. The problem is acute in the construction industry, where studies show a higher prevalence of mental distress, coupled with a lower likelihood of workers reporting harassment.2

Legislators and adjudicators have responded. Federally, and across most provincial jurisdictions, human rights and occupational health and safety laws aim to prevent and reduce workplace harassment and discrimination. Likewise, judges and administrative decision makers have recognized implied terms in employment contracts and collective agreements that require a broad range of employer responses.

Beyond the immediate labour costs of harassment are the legal and reputational ones. In a recent B.C. case,3 an employer was ordered to pay $964,197 to a worker after a human rights tribunal found that he was subject to a poisoned work environment after having been discriminated against on the basis of his race and skin colour, and later retaliated against for filing a complaint.

It is important for employers to understand their legal obligations in preventing and mitigating the damage caused by workplace harassment.

Workplace harassment

An important starting point in addressing the problem from a legal perspective is to understand what “workplace harassment” means. An employer’s obligations to its workers arise from the respective employment agreement or collective agreement, as well as from legislation, such as human rights or occupational health and safety statutes.

Human rights legislation is engaged because workplace harassment or flawed investigations into alleged harassment may amount to discrimination and, under human rights legislation, an employer must provide a discrimination-free workplace to the point of undue hardship.

Occupational health and safety legislation is engaged because workplace harassment affects the victim’s “health and safety” (sometimes defined as their “physical, psychological and social well‑being”), and, under such legislation, employers are responsible for ensuring the health and safety of workers and that none of its workers are subjected to workplace harassment. Furthermore, flawed investigations into alleged harassment may, themselves, violate such legislation.

Federally, and across most provincial jurisdictions, human rights and occupational health and safety laws aim to prevent and reduce workplace harassment and discrimination.

Takeaways

  • “Workplace harassment” is a single incident or repeated incidents of vexatious conduct against a worker in a workplace that is known or ought to be known to be unwelcome or cause offence, but does not include “reasonable” actions taken by an employer to manage and direct the workplace and workers.
  • Workplace harassment is pervasive, particularly in the construction industry where it disproportionately affects women, and has legal, economic and reputational consequences.
  • Employers’ obligations with respect to workplace harassment are found under employment contracts and collective agreements, as well as legislation, such as human rights and occupational health and safety statutes.
  • Employers’ obligations with respect to workplace harassment are broad and encompass preventing, responding to and resolving allegations of harassment, where they are related to the workplace.
  • Failing to foster an inclusive workplace and discipline workers for engaging in harassment may limit an employer’s ability to respond to future incidents of harassment.
  • Even where no harassment occurred, a flawed investigation may, itself, result in liability.

Definitions of workplace harassment vary across statutes and court decisions4. However, they all tend to touch on the same elements: workplace harassment is a single incident or repeated incidents of vexatious conduct against a worker in a workplace that is known or ought to be known to be unwelcome or cause offence. Excluded are “reasonable” actions taken by an employer to manage and direct the workplace and workers5. Examples of harassment include:6

  • Unwelcome remarks, slurs, jokes, taunts or suggestions about a person’s race, skin colour, place of origin, religion, age, marital status, family status, disability, gender or sexual orientation and background.
  • Persistently picking on individuals either in public or in private.
  • Punishing workers by removing responsibilities for minor infractions or overloading an individual with work and reducing time frames to complete the work.
  • Acting towards workers with a condescending attitude, or demeaning or belittling employees.
  • Spreading rumours, gossiping about or damaging a worker’s reputation.
  • Threatening a worker’s job security.

Prevention

Employers have a legal obligation to ensure the health and safety of their workers and visitors in the workplace.7 This includes the creation and implementation of policies and training to educate workers and set examples regarding what is and is not acceptable in the workplace.

In the construction industry, where workers are less likely to report harassment, management should monitor workers and set appropriate examples. This is particularly relevant in the context of harassment towards women, who, although make up only a small fraction of all construction workers in Canada, experience a significant proportion of reported harassment. In one case,8 a human rights tribunal recognized that “the harassment faced by women at construction sites runs the gamut from overt, sexually-oriented comments, propositions and threats, to more subtle ‘gender harassment’ whereby women are more closely watched, judged and tested than their male counterparts, and isolated through body language and silence.”9

An employer’s failure to prevent the harassment is a breach of its duty to provide a safe workplace, and has been held in some cases to amount to constructive dismissal. Failing to foster a safe workplace environment, or to discipline workers for harassment, has more than just a direct effect on the workplace, it also limits the ability of management to discipline workers for harassment.

In assessing whether an employer’s discipline is excessive in any given case, labour arbitrators consider the workplace environment and equality of discipline.10 A good example is Brooks Health Centre and HSAA, Re.11 In that case, it was concluded that, although the grievor had engaged in abusive behaviour toward women that was sexist and demeaning, the employer’s decision to dismiss the grievor immediately was “too severe a penalty” because “management was too tolerant of crude jokes, name calling and bad language … there was a general atmosphere involving locker room humour, practical jokes and profanity,” and the grievor “was only one of several employees who indulged in it.”12 The grievor was awarded damages in lieu of reinstatement, even though the arbitration board found that his conduct “was deplorable and standing alone would merit dismissal.”13

It is important for employers to understand their legal obligations in preventing and mitigating the damage caused by workplace harassment.

Workplace investigations

Even if an allegation turns out to be false or did not involve harassment, or did not involve conduct in the workplace, an employer’s failure to adequately respond may in and of itself amount to a breach of its duties under contract and legislation.14

  • The extent to which an employer is liable for a poisoned work environment often hangs on the employer’s response to a harassment complaint. Adjudicators will consider:
  • The employer’s awareness of workplace harassment, and the existence and implementation of policies or procedures combating harassment.
  • The employer’s immediate response to the complaint (e.g. once an internal complaint was made, did the employer treat it seriously, promptly and sensitively?).
  • The employer’s resolution of the complaint (e.g. did the employer communicate its findings to the complainant and provide a healthy, discrimination-free work environment following the complaint?).15

In light of the above, it is important that all employers undertake a real and comprehensive investigation of all complaints of workplace harassment.

References

  1. Darcy Hango and Melissa Moyser, “Harassment in Canadian workplaces” (17 Dec 2018), online: Statistics Canada; Martin Shain, “Stress at Work, Mental Injury and the Law in Canada: A Discussion Paper for the Mental Health Commission Of Canada” (15 Aug 2009), online: Mental Health Commission of Canada https://mentalhealthcommission.ca/sites/default/files/Workforce_Stress_at_Work_Mental_Injury_and_the_Law_in_Canada_ENG_0_1.pdf
  2. Travis Heller, Jacinta Hawgood & Diego De Leo, “Correlates of Suicide in Building Industry Workers” (2007) 11:1 Arch Suicide Res at 105-117; Oi-ling Siu, David Phillips & Tat-wing Leung, “Safety Climate and Safety Performance Among Construction Workers in Hong Kong. The Role of Psychological Strains as Mediators” (2004) 36:3 Accid Anal Prev at 359-366.
  3. Francis v BC Ministry of Justice (No 5), 2021 BCHRT 16 (CanLII); Francis v BC Ministry of Justice (No 3), 2019 BCHRT 136 (CanLII) (Francis 3).
  4. See e.g. Canada Labour Code, RSC 1985, c L-2 (“CLC”) s 122(1); Occupational Health and Safety Act, SA 2017, c O-2.1 (“AOHSA”), s 1(q); Occupational Health and Safety Act, RSO 1990, c O.1, s 1(1); WorkSafeBC, “Policies for the Workers Compensation Act” (2021), online: WorkSafeBC worksafebc.com/en/law-policy/occupational-health-safety/searchable-ohs-regulation/ohs-policies/policies-for-the-workers-compensation-act#SectionNumber:P2-21-2
  5. See e.g. AOHSA, supra s 1(q).
  6. University Health Network v OPSEU (2010), 100 CLAS 331, 2010 CarswellOnt 834 (Ont Arb) (Arbitrator: Reilly) at para 139, cited with approval in Unifor, Local 922 and Nutrien Ltd. (Hedlin), Re, 2020 CarswellSask 678 (Sask Arb) (Arbitrator: Wallace) at para 71.
  7. See e.g. CLC, supra s 122.1; OHSA, ss 3(1)(a)(i)-(ii); Occupiers’ Liability Act, RSA 2000, c O-4, s 5; and Criminal Code, RSC 1985, c C-46, s 217.1.
  8. Burton v Chalifour Bros Construction Ltd, [1994] BCCHRD No 41, 1994 CarswellBC 4085 (BCHRT).
  9. Ibid at para 9.
  10. Alberta Union of Provincial Employees v Alberta, 2020 ABCA 284 at para 30.
  11. Brooks Health Centre and HSAA, Re, [1995] AGAA No 50, 1995 CarswellAlta 1604 (Alta Arb) (Arbitrators: Tettensor, Mearns and Currie).
  12. Ibid at paras 82, 95-103.
  13. Ibid at para 99.
  14. See e.g. The Employee v The University and another (No 2), 2020 BCHRT 12 at para 273 and Laskowska v Marineland of Canada Inc, 2005 HRTO 30 (“Marineland”).
  15. Marineland at paras 59-60. Piling Canada

Janna Young and James Jeffrey are associates with Burnet, Duckworth & Palmer LLP.

Category: Business
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