- Employers must have written policies and programmes on workplace harassment and workplace violence.
- Every incident and complaint must be investigated appropriately in the circumstances.
- Harassment under occupational health and safety law is broader than discrimination under human rights law. The two regimes overlap but are not the same.
- Reprisal against a worker who raises a concern is prohibited.
Two overlapping regimes
People often use “harassment” as though it were one legal concept. In Ontario there are at least two relevant frameworks, and they cover different ground.
The Occupational Health and Safety Act addresses workplace harassment and workplace violence as safety matters. Its definition of harassment is broad: vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. It does not require any connection to a protected ground.
The Human Rights Code addresses discrimination and harassment connected to protected grounds such as race, sex, disability, age, creed, and others. It provides remedies through the Human Rights Tribunal.
Conduct can fall under one, both, or neither. A pattern of bullying unconnected to any protected ground is squarely within the safety regime and generally outside the Code.
The concrete obligations
The safety legislation is unusually specific about what an employer must have in place:
- A written policy on workplace harassment, and a written policy on workplace violence, reviewed at least annually.
- A written programme implementing each policy, the actual procedures.
- A procedure for reporting incidents, including an alternative route where the employer or supervisor is the alleged harasser.
- A process for investigating incidents and complaints.
- A means of informing the complainant and the respondent of the results and of any corrective action.
- Information and instruction for workers on the policy and programme.
The alternative reporting route is worth noting. A procedure that requires reporting to one’s supervisor is inadequate where the supervisor is the problem.
Investigations
The obligation is to conduct an investigation appropriate in the circumstances. The standard is not perfection, but it does have content.
In practice that generally means: acting promptly; using an investigator who is impartial and has no stake in the outcome; interviewing the complainant, the respondent and relevant witnesses; giving the respondent the substance of the allegations and a real chance to answer; keeping a record; and reaching conclusions on the evidence.
Where the allegations are serious, or the parties senior, an external investigator is often the safer course, because internal impartiality becomes difficult to demonstrate.
The outcome must be communicated to both parties, in writing, along with any corrective action being taken.
Violence: the additional duties
The violence provisions go further than the harassment ones in several respects.
Employers must assess the risk of workplace violence arising from the nature of the workplace and the work, and reassess as often as necessary.
There are duties around domestic violence: where an employer becomes aware, or ought reasonably to be aware, that domestic violence is likely to expose a worker to physical injury in the workplace, it must take every reasonable precaution.
There is also a limited obligation to provide information about a person with a history of violent behaviour where a worker can be expected to encounter them and there is a risk of physical injury.
Reprisal
A worker who raises a concern, participates in an investigation, or exercises a right under the legislation cannot be penalised for it.
Reprisal is prohibited under both the safety legislation and the Human Rights Code, and a reprisal claim can succeed even where the underlying complaint does not.
This is a point employers underestimate. Managing a complainant out after a complaint, however framed, is examined closely.
Practical consequences of getting it wrong
A Ministry of Labour inspector can order an employer to conduct an investigation, including by an external investigator at the employer’s expense.
Beyond that, a badly handled complaint tends to become the basis of a broader claim, constructive dismissal, human rights damages, or damages for the manner of dismissal.
The pattern is common: the underlying incident might have been manageable, and the response is what generates the liability.
Common questions
Does harassment have to be about a protected ground?
Not under the safety legislation, whose definition is broad. It does under the Human Rights Code.
Is reasonable management action harassment?
The legislation expressly excludes reasonable action taken by an employer or supervisor relating to the management and direction of workers. Performance management conducted reasonably is not harassment.
Can I stay anonymous when I complain?
Usually not fully, because the respondent has to be able to answer the allegations. Confidentiality is maintained so far as possible, but it is not the same as anonymity.
What if the investigation clears the respondent?
The complainant is entitled to be told the results. A good-faith complaint that is not substantiated should not itself lead to consequences for the complainant.
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