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Harassment in the Workplace

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Maxim Software Systems (MaxiDent)
January 21, 2020

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Harassment in the Workplace

  1. 1. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Hosted by: www.rudnerlaw.ca Harassment in the Workplace Stuart Rudner stuart@rudnerlaw.ca 416.864.8501 Presented by: Alex Zlatin, MBA, B.Sc. CEO - Maxim Software Systems (MaxiDent) Executive Director - Dental Office Managers Association of Canada Author of “Responsible Dental Ownership - Balancing Ethics and Business Through Purpose”
  2. 2. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Disclaimer The user is authorized to use this presentation for the user’s own needs only, and is not authorized to make copies thereof for sale or for use by others. This presentation is not provided for the purpose of providing legal advice. Every situation is unique and involves specific legal issues. If you would like legal advice with respect to the topics discussed in this presentation, or any Employment Law matter, we would be pleased to assist you. 2
  3. 3. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Overview 1.Risks 2.Bill 132 3.Responding to Allegations 4.Conducting Investigations 5.Taking Remedial Action 6.Creating a Written Policy 7.Training Workers 3
  4. 4. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Risks ● Bad PR ● Legal liability ○ Wrongful dismissal ○ Constructive Dismissal ○ Punitive damages / Moral damages / Infliction of emotional distress ● Fines ● Not being an employer of choice 4
  5. 5. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Bassanese v German Canadian News Company Limited et al. ● Employee worked for 19 years ● 73 years old ● Alleged that she was harassed over prolonged period ● Complained to president on several occasions ● Harassment escalated to physical violence ○ complained to managing director and filed police report ● Terminated same day without notice 5
  6. 6. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Bassanese v German Canadian News Company Limited et al. Awarded: ● 19 months of pay in lieu of notice - $129,433 ● vicarious liability for assault - $15,000 ● aggravated damages - $50,000 6
  7. 7. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Increasing Damage Awards for Sexual Harassment AB v Joe Singer Shoes Limited - employee awarded $200,000 GM v X Tattoo Parlour - employee awarded $75,000 7
  8. 8. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Purpose of the Human Rights Act The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
  9. 9. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Harassment in the Human Rights Act Harassment ● 14 (1) It is a discriminatory practice, ○ (a) in the provision of goods, services, facilities or accommodation customarily available to the general public, ○ (b) in the provision of commercial premises or residential accommodation, or ○ (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination. ● Sexual harassment (2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination. 1980-81-82-83, c. 143, s. 7
  10. 10. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 132 ● Expanding the Definition of “Workplace Harassment” ● Includes “Workplace Sexual Harassment” 10
  11. 11. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 132 What do you need to do? ● Update policies ● Update procedures ● Train employees, supervisors & managers ● Investigate all complaints and incidents 11
  12. 12. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What if You Don’t? ● Power to order an independent investigation ● Fines: ○ Fine for individuals increased from $25,000.00 to $100,000 ○ Fine for corporations increased from $500,000.00 to $1,500,000.00 (Ontario) 12
  13. 13. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Complying with Bill 132 ● Policies and processes should be written, communicated, enforced and updated as needed ● Retain records of harassment and discrimination complaints, investigation processes and reports ● Act in a timely manner ● Confidentiality should be maintained ● Train your employees ● Investigate complaints properly before taking disciplinary action ● Communicate findings of the investigation with the parties, and outline what steps will be taken to resolve the matter ● Ensure a safe work environment free from harassment, discrimination, and reprisals 13
  14. 14. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Allegations ● Do not ignore ● Act expeditiously ● Call your employment lawyer ● Check policy ○Requirements for investigation / timing / people involved ■Review policy now to ensure not overly restrictive ● Consider other obligations (i.e. union) ● Decide who will conduct investigation 14
  15. 15. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Allegations ● Notify complainant and respondent ● Be mindful of complainant and respondent ○Ensure safe work environment ○Consider referral to EAP ○Interim steps ● Do not promise repercussion/lack thereof ● Do not promise confidentiality but demand it 15
  16. 16. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Hallmarks of a Good Investigation ● Unbiased ● Thorough ● Timely ● Well documented ● Defensible conclusions ● Recommendations & action items? 16
  17. 17. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Internal vs External Investigator ● Seriousness of allegations ● Sensitivity of issues ● Appearance of bias ● Expertise ● Availability ● Cost 17
  18. 18. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Interviewing the Complainant/Respondent and Witnesses ● Interview complainant ● Collect ○ All relevant details ○ Evidence with respect to incident(s) (e.g. emails, text messages, photos, etc.) and ○ Names and contact information of witnesses 18
  19. 19. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Conducting Investigations Reaching a Conclusion ● Once all evidence is collected, investigator must reach conclusion ○ Was there harassment or not? ● Don’t cop out – reach a conclusion ○ balance of probabilities - not “beyond a reasonable doubt” ● Assess credibility ○ Compare to evidence ○ What has “air of reality”? 19
  20. 20. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 The Importance of a Fair Investigation ● Investigate first ● Ensure fairness, objectivity, thoroughness ● Give opportunity to respond ● Often, employee response is critical factor in determining appropriate discipline 20
  21. 21. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law - Bad Investigation Vernon v British Columbia ● 30 year employee accused of bullying/harassment ● Known as “The Little General” ● Used offensive language, racial and other inappropriate comments ● Court concluded that the “investigation was flawed from beginning to end. It was neither objective nor fair” 21
  22. 22. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Vernon v British Columbia ● Awarded ○ 18 months’ notice ○ $35k in “The Damages Formerly Known as Wallace” ○ $50k punitive damages 22
  23. 23. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Case Law Burlington (City) v Canadian Union of Public Employees, Local 2723 ● Employee brought harassment complaint against two co-workers - both fired ● Another employee, close friend of the co-workers, brought harassment complaint against first employee → fired ● Grievor reinstated - claim not made out ● Employers have responsibility to “guard against complaints that are made for improper ulterior motives” ● Employer almost blindly overlooked circumstances of complaint and failed to acknowledge possibility that complainant may have been “embellishing” his story as “pay back” against the grievor 23
  24. 24. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Reporting Obligations Communicating the Results ● Complainant and respondent must be informed, in writing, of results of investigation and any corrective action to be taken ○ Does not necessarily mean providing them with full report ● How much detail an employer is required to provide to a complainant/respondent is not expressly set out 24
  25. 25. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Remedial Action Corrective Action ● Employer must determine what, if any, actions must be taken based on investigator’s report ● Options include: ○ (Re)training ○ Mediation ○ Verbal warning ○ Written warning ○ Suspension (with pay) ○ Dismissal (with or without cause) 25
  26. 26. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Creating a Written Policy Essential Elements of Policy/Program ● The Company’s commitment to maintaining a harassment free workplace ● Clear statement regarding scope of the policy ● Encourage reporting ● Procedures ● Consequences 26
  27. 27. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Creating a Written Policy Essential Elements of Policy/Program ● Definition of Workplace Harassment/ Definition of Workplace Sexual Harassment along with examples ● What is NOT harassment ● Process for Reporting Harassment ● Sanctions for false allegations ● Prohibition on Reprisal for Good Faith Complaints / Retaliation Against Anyone Participating in Investigation 27
  28. 28. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Implementing Policies ●Publicize policies ●Tell and train all employees: staff, managers, supervisors, executives ●Monitor behaviour ●Discipline offenders ●Update regularly ●Incorporate into employment contracts 28
  29. 29. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Training Workers ● Training must be appropriate to duties/responsibilities of employees ○ e.g. More training for managers and supervisors on responding and recognizing harassment ○ Investigation training mandatory for anyone who may conduct internal investigations ○ New employees should be trained ASAP after joining 29
  30. 30. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Alex’s Highlight of the Night 30
  31. 31. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 CE Code: AZSR21SFR20 Questions? 31
  32. 32. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Contact Us 416.864.8500 905.209.6999 info@rudnerlaw.ca 100 Allstate Parkway Suite 600 Markham, ON L3R 6H3 32 Presented By: Stuart Rudner 416.864.8501 stuart@rudnerlaw.ca Sign up for our Newsletter! CE Code: AZSR21SFR20

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