This article will examine the steps that follow after harassment has been investigated and reported by the complainant, an employer’s obligations under the OHSA, and the necessary elements required to establish the tort of harassment.
Obligations under the OHSA and Steps After Investigation
The Occupational Health and Safety Act places an obligation on workplaces to institute harassment plans and policies to address and prevent workplace harassment when it occurs. When harassment is reported, employers must investigate. In a large organization this is sometimes done with internal investigators or hiring external investigators to gather the facts and evidence before a decision is rendered by the employer on next steps. The procedures and steps in an investigation depends on the facts of the complaints and ultimately, the investigation will help determine whether the allegations are substantiated.
Once it is determined that harassment has occurred, the employer will have to decide on what they will do with the harasser. Again, depending on the facts of the complaint, it could mean a warning and some anti-harassment training, an apology and in serious cases, a termination for cause.
Furthermore, it should be noted that section 10 of the Ontario Human Rights Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”, which creates both objective and subjective elements to the definition. Section 7(3) also establishes a right for lower level subordinates to be free from unwelcome advances where there is an authority that can grant or deny them a benefit.
Victims of Harassment and the Tort of Harassment
Allegations of harassment often are brought up once a victim leaves their workplace. They could also come to an employer’s knowledge through a demand letter asking for compensation for the victim. In 2017, the Ontario Superior Court in Merrifield v. The Attorney General, 2017 ONSC 1333, officially recognized the tort of harassment. In that case, the Plaintiff was awarded $100,000 related to harassment he experienced at work. The test one must meet to establish the tort requires the following:
(a) The conduct of the defendant towards the plaintiff was outrageous;
(b) The Defendant intended to cause emotional distress or had a reckless disregard for causing the plaintiff to suffer from emotional distress;
(c) The plaintiff suffered from severe or extreme emotional distress; and
(d) That the outrageous conduct of the defendant was the actual and proximate cause of the emotional distress.
It is important that employers deal with workplace sexual harassment adequately and create policies with remedial measures that input employee knowledge about the repercussions of workplace sexual harassment.
If you are a victim of workplace sexual harassment, or you are an organization that is being held vicariously liable for the conduct of an employee against another employee, contact Stacey Reginald Ball, an experienced Toronto employment lawyer to ensure your rights and reputation are protected. Contact us at 416-921-7997 extension 225.