Workplace Violence and Harassmentachkarlaw-admin
Employees in Ontario have a right not to be subjected to workplace violence and harassment, as provided for under the Occupational Health and Safety Act (the “OHSA”). Depending on the form and the basis of the alleged harassment, employees may also seek protection under the Ontario Human Rights Code (the “Code”), if the harassment is discriminatory and based on the employee’s gender, race, religion, sexuality, and other enumerated grounds protected by the Code.
The OHSA protects employees from harassment and workplace violence by placing legal obligations on employers to investigate. Even if an employer is not being accused of harassment, the employer must still investigate every allegation brought forward and ensure the investigation is carried out promptly.
Thus it is important for employers to understand their obligations when a workplace violence or harassment claim is brought by an employee.
What is workplace violence?
Workplace violence generally refers to an act of physical force by one employee that causes or may cause, injury to another employee and that takes place in a workplace. This may include statements or conduct that could be interpreted by another worker as physical force. An objective standard is used to establish whether a reasonable person would interpret one’s conduct as workplace violence.
It is not necessary for actual physical force to be exercised. Workplace violence may also include a mere attempt of physical force that would cause injury to another worker.
Acts of workplace violence may include the following:
- Threats made through written or electronic methods of communication;
- Verbal threats of physical force;
- Offensive and threatening gestures; and
- Sexual violence.
What is workplace harassment?
Workplace harassment often refers to repeated behaviour by an employee that is unwanted and unwelcome. It may include but not be limited to the following:
- Conduct amounting to bullying, including pranks;
- Offensive or crude jokes; and
- Intimidation through any means of communication.
It may be difficult to identify as it can take many forms. As such, an objective standard must be used to determine whether workplace harassment has occurred. Any conduct or comment must be known or ought reasonably to be known to be unwelcome to be considered harassment. If a reasonable person would perceive the comment or conduct in question as unwelcome, then a claim of workplace harassment will be established.
What is workplace sexual harassment?
Workplace harassment also includes any conduct or comment that is sexual in nature, including but not limited to sexual humor that is unwanted. Such unwelcome behavior can constitute sexual harassment.
Sexual harassment can occur when a worker is harassed on any of the following grounds:
- Sexual orientation;
- Gender identity; and
- Gender expression.
Conduct based on these grounds that is known, or ought reasonably to be known, to be unwelcome will be considered sexual harassment. Sexual harassment may also include unwelcome conduct in the form of a sexual solicitation or sexual advances.
The Ontario Human Rights Commission (OHRC) also protects employees from discrimination or harassment based on these grounds. This is why it is extremely important for employers to understand their duties when a workplace harassment Ontario complaint is brought to their attention.
Duties of Employers
Employers have a duty to protect their employees from workplace violence and harassment. To discharge this duty an employer must ensure that an investigation occurs into any harassment complaint that is made. Depending on the outcome of the investigation, it may be necessary to implement disciplinary measures against the employee responsible for the harassment.
Employers will also want to have a written policy clearly addressing harassment so that employees know how and when to report harassment when it occurs. Ideally, employers should review their policies every so often to ensure they are updated. It is also important that employees not be punished for reporting harassment.
What if an employer does not investigate a reasonable complaint of harassment?
If an employer does not investigate harassment complaints or if an employee feels that the investigation is not being properly conducted, then the employee may complain to the Ministry of Labour, who can then order the employer to conduct an investigation, in addition to other fines and sanctions.
In addition, if the employer does not properly investigate a harassment complaint, it may lead to a toxic workplace, and the employee who was harassed may be able to claim constructive dismissal against the employer. In either instance, it is important for any employer to investigate a harassment claim once the employer has become aware of the harassment.
If you are unsure about any work obligations you may have as an employer or are an employee who feels they may be the subject of workplace harassment or violence, our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at 1-800-771-7882 or email us at [email protected], as we are happy to assist.
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