Sunday, 17 June 2018

Employers’ Obligations to Conduct Workplace Harassment Investigations

As employers should by now be aware, there is an obligation to conduct investigations into allegations of workplace harassment complaints. Subsection 32.07(1)(a) of the Ontario Occupational Health and Safety Act, stipulates:
To protect a worker from workplace harassment, an employer shall ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.
This obligation is not to be taken lightly, as a recent decision from the Ontario Superior Court of Justice makes clear.

In Horner v 897469 Ontario Inc., 2018 ONSC 121 (CanLII), the employer did not appear to make any sort of investigation of an employee’s claim of harassment. The employee reported the harassing behaviour to her supervisor. Once, when reporting harassing behaviour, she advised her supervisor that she felt she should go home, to which the supervisor simply said: “goodbye.”

Feeling that her concerns were not being addressed, the employee escalated her complaint to the owner and asked him for a lay-off. The owner said he could not lay her off but asked whether it would make a difference if she took a day and then returned to the workplace without the harassing employee being present. The plaintiff said it would improve the situation for her.

Six days later she received a termination letter. The termination letter indicated the plaintiff was being terminated for cause as a result of her conduct, alleging that she was given to ranting at her fellow colleagues. The plaintiff was also advised that since she was being terminated for cause, she was not entitled to severance.

The plaintiff, who was already suffering from depression, fell into a deeper depression and was subsequently diagnosed with acute depression and was prescribed stronger medications. She also lost roughly 30 pounds, and started counseling sessions.

The employee (i.e. the plaintiff) sought damages for breaches of the Human Rights Code, aggravated damages and punitive damages. The employee’s claim for wrongful dismissal had already been decided in a separate decision.[1]
The court found no discrimination under the Human Right Code, but it did find this was an appropriate case to award aggravated and punitive damages.

Claim for Aggravated Damages
There are three elements to a claim for the aggravated tort of intentional infliction of mental suffering: (i)   flagrant or outrageous conduct; (ii)   calculated to produce harm; and (iii)   resulting in a visible and provable illness.

With respect to this claim, the court found there were damages for intentional infliction of mental suffering and emotional distress. The court was not satisfied that the conduct complained of rose to the level of intentional infliction of mental suffering, but it did find that the manner of her termination caused an aggravation of the plaintiff’s pre-existing depression.

The court was satisfied that the plaintiff was harassed in the workplace. The court was also found that, rather than investigate the complaint(s), the employer terminated the plaintiff. Not only that, the plaintiff was informed that she was fired by a termination letter being placed in her backdoor on December 22, 2017 (i.e. the holiday season). The court noted that this manner of termination was not only “cold and brusque”, but “cowardly”.[2]
The court noted this was an appropriate case for aggravated or “moral” damages, and awarded the plaintiff the sum of $20,000 for aggravated damages[3].

Punitive Damages
Justice Newton noted that compensatory and aggravated damages were each insufficient to recompense the plaintiff in this situation and awarded a further $10,000 in punitive damages.
The court also awarded $5,500 for the plaintiff’s costs.

The Take Away

Harassment is a serious claim and employers must do the right thing by their employees and take all such claims seriously. A proper workplace investigation is in order when an employee comes to their superiors with allegations of workplace harassment. Not only do employers have a statutory obligation under the OHSA to conduct a workplace investigation, they also have a moral obligation to treat employees fairly. As this case demonstrates, failure to do so will may cost the employer.

[1] Horner v. 897469 Ontario Inc. 2017 ONSC 3154.
[2] Ibid, at para 35.
[3] Ibid at para 36.

The Strike

This year, the term “strike” turned 250 years-old. Of course, the word was around well before 250 years ago (as were work stoppages), but 1768 was the first year the term “strike” was used to describe a collective work stoppage.

Where did it come from?

According to an article in Jacobin magazine, the term originated during coal-heaver and sailor strikes in London in 1768.  In contributing the term, the sailors played a part in history, larger than any they could have imagined at the time.

The term came from the act of “striking”, which describe a situation where sailors would remove the topsails of their ships, rendering the ships motionless. In 1768, the sailors won pay raises by striking their sails and marching with drums passed establishments that sold things the sailors could not afford on their pre-strike wages. Inspired by the sailors, coal heavers also used the strike and, in 1768, secured agreement on better wages.

The Strike today

The strike today is as important as ever, with strikes occurring the world over. Just this year, for instance, a major rail strike in France has been used to protest government plans that union(s) say will lead to privatization. Also, in Germany, IG-Metall, Germany’s largest union with some 2.3 million members, used 24-hour strikes to successfully negotiate a pay increase of 4.3% and the right to a 28-hour work week. And in Canada, CP Railway workers have recently used the threat of strike action in their negotiations with the company.

This is to name only a few instances of strike activity around the world. No matter how you look at it, the strike remains a powerful tool for workers in seeking fair compensation and benefits for their labours.

250 years and the “strike” is still the go-to verb for collective work stoppage. Workers have long known that the strength of their bargaining position comes from solidarity and the ability to remove their labour. This was as true 250 years ago as it is today, proving once more that time may erode even the greatest empires, but it can’t destroy an idea.