How to Avoid Costly Legal Action Caused by Co-worker(s) Harassment

There has always been a clear understanding that employers are held responsible for the actions of their managers and supervisors in matters concerning harassment in the workplace. Whether an employer knew that there was harassment going or not, if they do not take action upon learning of the complaint, they will be guilty of failing to provide a workplace free of harassment. This has been further highlighted by the inclusion of the requirement to have harassment recognized under Ontario’s Occupational Health and Safety Act.

There has been a recent case, which clearly demonstrates that the Act will apply equally to co-workers not just managers and supervisors. The Ontario Superior Court of Justice has held that an employee was constructively dismissed from his employment after he endured months of harassment by his coworkers. A brief summary of the facts:
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• The employee was a 36 year-old hourly paid worker in a manufacturing operation
• Harassment was allowed to continue even after the employee registered a verbal complaint with their manager.
• The Company failed to take any action even though they had a published harassment policy, which required immediate action by the Manager. The Complainant failed to notify the HR Department when it became clear that the Manager was taking no action in contravention of the policy.
• The employee eventually went on sick leave and commenced his claim for constructive dismissal.
• The courts found that the employer failed to provide a workplace free from harassment and the employee was awarded 12 months notice.
• The award was reflective of the fact that the Company was still liable even though there was no formal written complaint.
• The Company acted after the complainant went on sick leave but it appears that the investigation was flawed.

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The Supreme Court in an old case also pointed out that although employers will be liable for harassment, whether they know of it or not, the penalties imposed will be less, or non-existent for an employer that “responds quickly and effectively to a complaint … to remedy and prevent recurrence.” (Robichaud v. Treasury Board (Department of National Defence), 1987.)

This above noted case clearly supports the necessity for all employers to ensure that they are compliant with the legislative requirements but equally important they must ensure that management and supervision are properly trained and the policies are actually followed in the workplace.

To avoid such a costly outcome as outlined above, employers should:
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1. Have a written code of conduct, which outlines the types of behaviours your organization deems unacceptable

2. Provide definitions of “harassment” and “hostile work environment”; use easy to understand terms and language

3. List examples of prohibited behaviour, but state that the list is not comprehensive

4. Explain and train your employees in your complaint reporting process and procedures

5. Specify to whom the employee must refer to file a complaint

6. Include a section on confidentiality and privacy issues; explain that the identity of the accused, the accuser and any witnesses involved will be kept confidential and will be revealed on a need-to-know basis

7. Provide for disciplinary measures up to termination for employees who violate the policy, file a false complaint or complain in bad faith

8. Have new and current employees sign and acknowledge that they have been informed and understand the policy as it is written

9. Be consistent in enforcing company policy; never overlook infractions

10. Monitor the workplace by having managers/supervisors consistently assess the workplace to ensure it conforms to the company’s code of conduct

11. Indicate to employees that conduct outside of the workplace may still be considered employment-related provided there is a connection between the activity and the workplace, such as any company-sponsored event

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The above list is not exhaustive but does indicate the detail and commitment required to be legislatively compliant.

Should you find your organization is non-compliant with these legislated requirements, you should contract with an organization or consult with a certified professional that is familiar with the requirements and have successfully implement and manage the process. This is not a policy that should be a learning exercise for a junior employee. It is a very serious subject that requires proper attention.