April 24th, 2024

Being harassed at work? What to consider when deciding what to do next

By Pascale Malenfant, The Canadian Press on March 29, 2024.

Bea Bruske, president of the Canadian Labour Congress (CLC), speaks during a press conference on Parliament Hill in Ottawa on Tuesday, Feb. 7, 2023. If you’ve been the victim of workplace harassment, it can be difficult to feel you’re not alone — and even more difficult to know where to go with a complaint. However, experts say there are a number of recourses for employees who have suffered harassment, regardless of where they may be located and the size of the company they work for. THE CANADIAN PRESS/Spencer Colby

If you’ve been the victim of workplace harassment, it can be difficult to feel you’re not alone – and even more difficult to know where to go with a complaint.

However, experts say there are a number of recourses for employees, regardless of where they are located and the size of the company they work for.

Workplace harassment legislation

The most important place to start when it comes to exercising your rights as an employee? Knowing which law applies, said Jon Pinkus, an employment lawyer and partner at Samfiru Tumarkin LLP in both Ontario and British Columbia.

“Most provinces have a specific piece of legislation that protects workers against workplace harassment,” he said. “For example, in Ontario, it’s the Occupational Health and Safety Act. In B.C., it’s the Workers Compensation Act.”

However, federally regulated industries such as airlines, banks and most Crown corporations may instead fall under the Canada Labour Code.

From these laws, employees can glean the definition of harassment as it applies to their jurisdiction.

“What’s important for employees to note is that this doesn’t include performance management that may be uncomfortable, or even severe,” added Pinkus. This means that where an employer is using reasonable methods to help an employee improve – like putting together a performance improvement plan for a worker who is consistently underperforming – a claim for harassment may not be viable.

“A lot of the debate about whether something is harassment focuses on this point,” he said.

Preparing to bring a complaint

Regardless, if someone feels they are a victim of harassment at work, Pinkus emphasized the importance of recording the behaviour from the beginning – something Bea Bruske, president of the Canadian Labour Congress, echoed.

Harassment “doesn’t usually just start with one incident or one bad joke, or somebody doing something specific to you one time,” she said. “It’s often over a longer period of time that these things escalate, so it’s important to document this escalation as proof of the larger issue.”

Pinkus also noted that employees should ensure that when they record evidence, they do so in writing (or another medium, like photos, video or audio) by flagging the issue to their manager or human resources department over email as soon as it happens.

“Employees also shouldn’t be afraid to record (audio of) an incident if they can,” he said, “because in Canada, recording private conversations is legal as long as one of the parties consents – which in this situation, could be the employee.”

Without evidence like this, “For all legal intents and purposes, the harassment doesn’t exist,” added Pinkus.

Legal recourses

Though there are a myriad of options for employees to enforce their rights against workplace harassment in Canada, Bruske said employees should start by trying to resolve the issue in-house – whether that be by bringing the issue up with the harasser themselves, or turning to a manager or human resources department to work out a solution.

“The overarching thing to keep in mind is that it’s an employer’s obligation to actually deal with harassment and violence at work and to keep (their employees) safe,” she said. This includes ensuring the proper policies, protocols and services in place for harassment prevention and response, as well as support mechanisms for employees who bring harassment claims in the first place.

“The point is that they should be creating a culture where workers are comfortable reporting these incidents,” said Bruske, “because not all workers are going to feel comfortable doing so,” particularly if they fear reprisal.

For unionized workers especially, Bruske emphasized the importance of first turning to the union’s workplace safety and health committee, then filing one’s grievance under their collective agreement – which, in many provinces, is a mandated process.

Where internal resolution mechanisms may not be possible – for instance, if one works for a small business where the instigator is the owner or manager themselves – Pinkus said employees have three main legal recourses: bringing a claim to the province’s labour-related ministry or commission, opening a case at the human rights tribunal, or trying their luck with litigation where they feel they have no choice but to resign from their position.

However, to bring a claim to a human rights tribunal, an employee must be able to show they were discriminated against based on “enumerated grounds,” which are specific categories of identity that employers cannot discriminate against such as race, gender identity or sexuality.

This can differ across Canada according to each province or territory’s human rights code, said Pinkus. For example, British Columbia protects political affiliation as an enumerated ground, but Ontario does not.

“This can differ across Canada,” said Pinkus. “For example, B.C. has political affiliation as a protected ground, but Ontario doesn’t.”

Both ministry involvement and human rights tribunal rulings can order changes to a workplace in order to resolve the matter – though compensation is less likely to be awarded to employees by the former.

Finally, though employees can try to claim they were the victims of constructive dismissal – where an employee alleges their employer created such a hostile work environment that they had to resign – such cases are extremely hard to win.

“Proving that a work environment is so toxic or so poisoned that you basically had no choice but to leave is a very high bar to meet,” he said, “which is why I generally don’t recommend (constructive dismissal claims) unless it’s a very clear case.”

Keeping a good paper trail of evidence for employees wishing to bring such claims is especially important, as plaintiffs must generally prove their managers were aware of the harassment – and allowed it to happen, regardless – to be successful in court.

Making an ultimate decision

Ultimately, though no one case is the same, Pinkus emphasized the importance of employees knowing that they should not take what their employers tell them “at face value.”

“They might not tell you they owe your wages, severance or a safe work environment,” he said. “Remember that employers have different interests than you, which might mean you have to navigate some of these things on your own.”

Further, Bruske noted that workers should know that anti-workplace harassment laws also apply to third parties – not just employers or colleagues.

“The employer still has the obligation to keep employees safe from harassment by customers or patrons,” she said. “It can start with something as simple as putting up notices that harassment will not be tolerated, or letting go of a strict attitude of, ‘the customer is always right.'”

“But what’s most important is that employees start reporting – because if it’s not reported, that’ll usually lead to escalation,” she said, “and you have the right to feel safe and supported where you work.”

– Pascale Malenfant is a law student and freelance writer based in Montreal.

This report by The Canadian Press was first published March 29, 2024.

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