Sexual harassment is an unfortunately reality in today’s society, and workplaces are not immune. However, everyone has the right to work without being sexually harassed, and there are laws in place in Ontario to help protect this right.
Ontario’s human rights legislation is the Ontario Human Rights Code, and just like federal legislation, it exists in part to prevent sexual harassment. There are also common law employment law remedies in Ontario to deal with sexual harassment. These remedies range from torts such as assault and the infliction of nervous shock and mental suffering, to actions for wrongful dismissal, constructive dismissal and breach of the implied obligation of good faith and fair dealing. However, constructive dismissal is a complex area of employment law, so it is important to reach out to the professional like Stacey R. Ball – Employment Lawyer in Toronto at Ball Professional Corporation for assistance as early as possible.
Let’s focus on constructive dismissal.
- In Ontario, constructive dismissal occurs when an employee has not been dismissed, but the terms or conditions of their employment have changed significantly. Typically, the terms or conditions that have changed are your compensation, working hours, title or duties.
- The courts have also found an implied term in an employment contract and have generally held that an employee is entitled to decent treatment by the employer and to work in a safe and healthy work environment. This includes freedom from sexual harassment. A breach of this implied term has been treated as grounds for constructive dismissal.
What does this mean for you as an employee?
- If you have been continually harassed or treated unfairly, you might be able to resign the position and sue for constructive dismissal.
- You must be able to show proof of the abusive treatment, and the behavior must be enough to essentially show that the terms of your employment relationship have been renounced.
What if you are being sexually harassed by a co-worker?
- Sexual harassment may come from a co-worker, as opposed to your actual employer.
- In that case, your employer’s implied duty to make sure you are not harassed, abused or mistreated extends to co-workers, if the working environment becomes so unpleasant that you must resign.
- It is important to bring any complaints of sexual harassment from co-workers to your employer’s attention. They cannot be expected to protect you from sexual harassment if they have no idea what is happening.
What if you are penalized for bringing the sexual harassment to your employer’s attention?
- This is called “reprisal” and it is illegal under the Ontario Human Rights Code. You cannot be punished for asserting your protected rights.
- Examples of behavior that may qualify as constructive dismissal after you raise a complaint of sexual harassment include: a demotion, an unfair performance evaluation or being passed over for a raise without cause.
The remedies for constructive dismissal are similar to those found in a wrongful dismissal suit. The employee is entitled to reasonable notice because the employment contract has ended and they have essentially been terminated from the job that they signed up for.
It is always a good idea to keep a record of inappropriate behavior or harassment at work.