Employees can often feel powerless in the face of workplace harassment, particularly if the comments or actions are coming from a superior. Read on to learn what legal options are available in Ontario if you are experiencing workplace harassment.
What should an employee do if they are experiencing workplace harassment?
Generally, it always best to first try to resolve things internally in your workplace. If you have a concern, you should report it to your Human Resources Department, a supervisor or manager, or a dedicated Ombudsperson if one exists where you work. If possible, you should keep things in writing, and record the times, places, and witnesses to any harassment you experience. Your workplace should have a harassment policy in place, and your Human Resources department may conduct an investigation into the concerns you have raised.
It may be helpful to consult with an employment lawyer early on in the process to get guidance and support on how to bring and handle your internal complaint. If attempts to resolve the harassment internally are unsuccessful, this is when an employee may consider taking legal action.
Is the harassment based on a protected ground?
In Ontario, if you are experiencing discrimination or harassment based on a protected ground under the Ontario Human Rights Code such as race, sex, gender identity, age, or disability, you can make an application to the Human Right Tribunal of Ontario (HRTO). The HRTO offers parties the opportunity to settle disputes through mediation, and if mediation is not successful, then a hearing will be held. The Tribunal can award damages for loss of dignity, or for quantifiable damages such as lost wages.
Other provinces have similar legislation and federally regulated employees have the Canadian Human Rights Act. If you are a federally regulated employee (discussed further below) and you have experienced discrimination or harassment in the workplace based on a prohibited ground, you can make a complaint to the Canadian Human Rights Commission. Similar to the HRTO, the parties will first be required to participate in a mediation. If the mediation does not resolve the dispute, then your claim will be assessed and a Commissioner will decide whether the complaint should be dismissed or should be referred to the Canadian Human Rights Tribunal for a hearing where remedies can be awarded such as compensation for loss of wages or pain and suffering.
Are you a federally regulated employee experiencing harassment?
If you are a federally regulated employee the new Workplace Harassment and Violence Prevention Regulations came into force on January 1, 2021. These Regulations require employers to conduct workplace assessments for risks of harassment and violence, have emergency procedures and prevention policies in place, and to conduct training for all employees on harassment and violence prevention.
Importantly, the Regulations also require the employer to have a “designated recipient” in the workplace who is not a manager, to receive employee complaints of workplace harassment or violence. This can ease employees’ fears of reprisal or negative treatment, especially if it is their supervisor who is committing the harassment. Once an employee reports their concern to the designated recipient, there is a resolution process between the employer and the employee, and the employer must also have support measures in place. The identities of the parties are to remain confidential throughout the process.
Are you a provincially regulated employee experiencing harassment?
In Ontario, there is currently no comprehensive workplace harassment and violence prevention policy like the federal one described above. However, this does not mean that provincially regulated employees are not afforded protection or recourse if they are experiencing workplace harassment.
Provincially regulated employees can still make a complaint to a Human Resources representative or to their supervisor, and employers should still have a policy and process in place for investigating and resolving workplace harassment issues in accordance with provincial health and safety legislation.
After reporting concerns to the employer, and consulting with the Joint Health and Safety Committee or health and safety representative in the workplace, employees can also contact the Ministry of Labour and file a workplace health and safety complaint. The Ministry of Labour will then undertake an investigation into the complaint.
When Severe Harassment Leads To Constructive Dismissal
Severe harassment in the workplace that makes continued employment intolerable can legally sever the employment relationship and can result in a constructive dismissal. An employee can sue their employer for constructive dismissal through an action in the courts.
A constructive dismissal means the employee was forced to resign because the employer made a unilateral change to the employment contract. This can include a substantial change to the employee’s role, hours of work or wages, or severe harassment that creates a poisoned work environment.
In a constructive dismissal, the employee treats their employment as terminated, and as such are entitled to damages for termination pay and/or severance.
Constructive dismissals resulting from harassment can be difficult to prove but can be a powerful tool for employees who have experienced significant harassment in the workplace. The test for whether a constructive dismissal has taken place is an objective one. The employee must show that the conduct of the employer was such that a reasonable person in their position would have found continued employment intolerable. Usually, this will require a pattern of harassing behaviour, but one incident may be enough if it is sufficiently severe.
If you are experiencing harassment in the workplace, you should contact an employment lawyer. Monkhouse Law provides free 30-minute phone consultations and can help in assessing your legal options and rights.