Unfortunately, many employees have negative experiences while at work. These can come in the form of not getting along with a co-worker, unfair performance reviews, getting yelled at by the boss, or any number of other situations that may come up in the workplace. However, it is not always easy to tell whether what one has been subjected to at his or her place of employment constitutes harassment. Further, many people do not know how they can address it or what their protections are. This post will provide an overview of the law of workplace harassment in Ontario, but will not cover sexual harassment.
In Ontario, workplace harassment is primarily addressed under the Occupational Health and Safety Act (“OHSA”), although the Ontario Human Rights Code (the “Code”) also addresses certain forms of it. Under both the OHSA and the Code, 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.” This definition includes both repeated conduct and individual incidents, although recurring behaviour more frequently qualifies as harassment. Further, it does not matter whether the person knew that the conduct was unwelcome – the test is objective and looks at what the person ought to have known.
Workplace harassment includes unwelcome conduct that should be known to be offensive, embarrassing, humiliating or demeaning to a worker, or behaviour that intimidates or isolates a worker. Examples of such behaviours include, but are not limited to: yelling or threatening a worker, prohibiting a worker’s expression or communication with others, making rude or offensive remarks, humiliating a worker with malicious gossip or rumours, or excluding the person from work activities or ignoring them completely, etc. Generally, workplace harassment does not include reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace (subsection 1(4) of the OHSA). Examples include negative but valid performance reviews and disciplining workers. Further, conflict in the workplace will not constitute harassment in-and-of-itself.
Some forms of harassment also fall under the Code. However, the Code deals explicitly with actions that discriminate against people based on a protected ground. Therefore, if the harassment involves discriminatory conduct, it will be covered by the Code.
How do these pieces of legislation protect workers from harassment? The OHSA requires employers to have a policy in place that deals with allegations and incidents of harassment. Further, employers have a duty to conduct a thorough investigation into such allegations. If an employee is experiencing workplace harassment, he or she should begin by bringing it up to Human Resources or management. The employer is then required to implement its harassment policy and conduct an investigation. If the employer fails to address the matter adequately or does not have a policy in place, the employee can contact the Ontario Ministry of Labour (the “MOL”). The MOL can then investigate the employer’s response to the situation and harassment policy. However, it will not investigate the specific harassment investigations or order compensation or other individual remedies. Instead, it can require the employer to alter its policies and/or conduct a thorough investigation.
Additionally, section 50 of the OHSA prohibits employers from reprising against an employee who makes a complaint of harassment, as it is an attempt by the employee to enforce his or her rights under the OHSA. This means that employers cannot punish employees for making harassment allegations, for example, by reducing the employee’s responsibilities or terminating his or her employment. This is true even if no actual harassment took place. Therefore, if you are unsure about whether your situation qualifies as workplace harassment, you are still protected from your employer’s retribution. If you feel that your employer has reprised against you, you may file a complaint with the Ontario Labour Relations Board (the “OLRB”). Individual remedies are available in such situations, and will generally be awarded to put the employee into the position he or she would have been in had the reprisal not occurred. For example, if an employee was terminated in response to making a harassment complaint, the OLRB may order reinstatement with back pay.
If the harassment falls under the Code, the employee can file an application with the Ontario Human Rights Tribunal (the “HRTO”). The HRTO can also award individual remedies. These can be financial, in which case the employee may be compensated with general damages for the loss of the right to be free from discrimination, including to compensate him/her for injury to his/her dignity, feelings, and self-respect, and/or with special damages for any special financial costs that were incurred as a result of the discriminatory harassment. Further, the HRTO can order non-financial remedies, such as reinstatement to your job, a promotion, or the removal of the harasser from your work environment.
The Code also prohibits reprisals for making complaints of discrimination, including harassment that is discriminatory, and the HRTO is also the proper forum to address such situations.
Unfortunately, many people experience workplace harassment at some point in their life. However, there are steps that one can take to address it. There are various legal tools available that are designed to stop workplace harassment when it occurs and compensate victims for any damage it has caused them. Employees are not without recourse.