In-house counsel are often informed by their human resources department after a formal complaint has been lodged, placing clients in a reactionary mode, which frequently results in legal exposures for the company as by then, several employer’s obligations may already have been breached.
Strict liability and significant damages
The courts and labour arbitrators have clearly taken the position these obligations will be strictly enforced, and damage awards can be very significant.
In Sulz v. Attorney General, a female member of the Royal Canadian Mounted Police in British Columbia alleged she was harassed by her superiors, resulting in clinical depression, which forced her to accept a medical discharge.
The court determined not only had the harassment affected her ability to work but it also had a disastrous effect on her personal life. The court awarded her $600,000 for future wage losses, $225,000 for past wage losses, and $125,000 for general damages. An appeal to the B.C. Court of Appeal was dismissed.
Bill 168 requires employers establish policies relating to workplace violence and harassment, and they be reviewed at least once per year.
The bill describes how the program to implement the policies should be conducted, as well as how information should be distributed to employees. The policy should provide for reporting up the chain of command, and describe the means by which the employer will investigate and address complaints.
Policies need to be clearly written and be comprehensible to employees. There should be a clear decision path, perhaps even an illustrative flowchart for employees to navigate. I have reviewed a number of policies and found them to be mesmerizingly confusing.
Most importantly, Ontario’s legislation imposes a number of proactive duties on employers that in-house counsel should play an important part in implementing.
It requires employers train and sensitize workers to the contents of workplace violence and workplace harassment policies. A reading of the case law indicates complaints tend very often to be trivialized, and that forms of harassment and violence go unrecognized.
The bill also requires employers assess risks of workplace violence that may arise from the nature of the workplace, and the work performed, and the joint health and safety committee, or the health and safety representative be directly advised of the results of such assessment.
Bill 168 even obligates employers to provide personal information to their employees about a person with a history of violent behaviour (limited to what is reasonably necessary to protect a worker from physical injury). It trumps privacy rights in this respect.
In my view, the lynchpin to appropriately administering the policy is a robust, transparent investigative process. The roles of the parties need to be well understood. The investigation should be grounded on due process and complaints should be investigated in a full and fair manner and incidents should not be trivialized.
Recognizing forms of violence and harassment
Bill 168 is preventative in nature. It is meant to head off violence before it occurs. In Universal Workers Union (Labourer’ International Union of North America, Local 183) v. Teston Pipelines Ltd., the Labour Relations Board upheld a five-day suspension imposed on a worker who threatened to kill his foreman on two separate occasions.
The board stated: “No employee should ever threaten to kill anyone else at work, much less his foreman.”
It decided the threats constituted workplace violence, and the employer has a duty to ensure its policies are known and understood, and put a stop to the unacceptable behaviour.
Where there is an allegation of a threat in the workplace, the parties must address the allegation as one of violent misconduct. There need not be evidence of an immediate ability to do physical harm, or even evidence of intent to do harm. The workplace violence in such cases is the utterance of the threatening words.
The amendments are based on the view workplace violence can be predicted at some level, because the behaviour of perpetrators tends to worsen over time. As well, incidents that occur outside the workplace, such as domestic incidents, often end up spilling over into the workplace. It is important for employers to know their employees, to understand unless there is some form of remediation or support provided, or workplace reassignment or restructuring, matters will very likely get worse before they get better.
Remedial steps should be proportionate and fair
An August 2011 decision, The Corporation of the City of Kingston and Canadian Union of Public Employees, Local 109, involved the grievance of an employee who was terminated after 28 years of service for uttering a death threat to a fellow employee.
There was a history of angry confrontations between the grievor and her supervisors and co-workers. She admitted to having problems managing her anger and had received counselling in the past. The culminating event occurred when the grievor was alleged to have threatened the life of the union’s local president.
Although there were no witnesses and the grievor denied uttering the threat, the employer concluded, after investigating, the threat had occurred.
The arbitrator upheld the termination, finding the grievor never seemed to accept responsibility for her misconduct. She did not demonstrate any appreciation of the seriousness of her actions, or show any remorse. In addition, she provided no evidence she had tried to alter her behaviour. This was seen to render the employment relationship unworkable, since the likelihood of a repetition of events seemed possible.
Legal exposure and practical concerns
Failure to take these steps could result in your client being sued for constructive dismissal, unjust dismissal, intentional infliction of nervous shock, negligence, a breach of the common law rules of contract in the form of an implied obligation on employers to treat workers decently, perhaps human rights discrimination, and for a violation of the Occupational Health and Safety Act in the form of a complaint to the Ministry of Labour.
There is too the practical, intangible effect employer neglect has on employees, which may manifest itself in the form of damages to the employer’s reputation, lost productivity, loss of management and employee time, employee resignations and terminations, and low morale.