OHSA workplace harassment amendments to take effect September 8, 2016: Are you ready?
Your spidey senses should be tingling, because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American games complained about David Peterson and her complaint was allegedly not taken seriously.
Here are three questions to consider when someone makes a harassment complaint.
1. Is the person being “harassed’ within the meaning of the law?
Under the Ontario Human Rights Code (the “Code”) harassment is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Effective September 8, 2016, under the Occupational Health and Safety Act (the “OHSA”) workplace harassment will be defined as (a) 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, or (b) workplace sexual harassment.
Note the similarities in the definitions of harassment under the two laws. Prior to 2010 an employee could be harassed as long as it wasn’t because of one of 16 personal characteristics such as sex, race, disability, and sexual orientation. Thereafter the definition of harassment was significantly expanded in the workplace, but an employee could not generally collect damages for a violation of this expanded definition of workplace harassment. Effective September 8, 2016 an employee who has been sexually harassed at work can file a complaint under the Code or under the OHSA.
2. Is an employer required to investigate a harassment complaint?
Under the Code, there is no explicit duty to investigate a harassment complaint, however some adjudicators under the Code have concluded that an employer does have a duty to investigate and have ordered employers to pay additional damages to employees for failure to conduct an adequate investigation. I suggest that all employers introduce a no-discrimination policy with a written complaint process and that complaints be investigated.
Effective September 8, 2016, an employer will have a duty to investigate harassment complaints, including sexual harassment complaints, under the OHSA.
3. Sexual harassment: A special kind of harassment?
An employee who has been sexually harassed can commence legal proceedings in at least three legal forums, namely:
I. An application Under the Code
The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. The Ontario Human Rights Tribunal can award significant damages under the Code. In a 2015 decision, an adjudicator under the Code awarded a former employee who had been sexually harassed $ 150,000 in general damages.
II. A complaint under the OHSA
An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The employer has no obligation to pay the complainant any damages if the investigation concludes she was harassed. The only obligation is to investigate and report back to the person.
III. An action in Ontario’s Superior Court
An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision, a judge awarded a former employee over $300,000 damages in connection with sexual harassment/assault in the workplace.
Lessons to be learned
- If an employee claims she is being harassed, find out whether she is claiming illegal harassment within the meaning of the Code, or the OHSA.
- If it is harassment because of a personal characteristic then the employer should commence an investigation under its human rights policy. If it is harassment within the meaning of the OHSA, including sexual harassment, then the employer should commence an investigation under its OHSA policy. In my experience, many employers have a workplace harassment policy but do not have a written complaint process under this policy. Such a policy is mandated as of September 8, 2016. If you are one of these employers, it’s time to prepare such a policy!
- Make sure that your organization’s internal complaint process(es) for harassment complaints comply with the OHSA, and the Ontario Human Rights Tribunal’s jurisprudence on what constitutes an adequate investigation.
- Investigate the complaint quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties etc.
- Investigations into workplace harassment complaints need not be time consuming or expensive but they should be completed. A properly trained internal investigator should be able to conduct most investigations quickly at little or no out of pocket cost.
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