On October 26, 2014, Jian Ghomeshi was fired from his position
as a radio host with the CBC. The CBC alleges that, based on
available evidence, it determined that Mr. Ghomeshi's conduct
was a fundamental breach of the CBC's standard of acceptable
conduct for an employee. Mr. Ghomeshi is being accused of
sexual and physical assault. Mr. Ghomeshi has since brought
an action against the CBC claiming damages for breach of
confidence, defamation, punitive, aggravated, and exemplary
damages. The Toronto Star reported:
The woman said she complained about Ghomeshi's behaviour to
her union representative, who took the complaint to a Q producer.
As the woman recalls, the producer asked her "what she could
do to make this a less toxic workplace for herself". No
further action was taken by the CBC, and the woman left the
broadcaster shortly thereafter.
Both the employee and the employer have taken criticism.
The employer likely had a workplace harassment and violence
policy, but the existence of a policy has not stopped or been
accepted as a full answer to criticism in the press. So what went
While we may never know what went wrong in this case, the answer
in some cases is that employers can fail to adequately consider the
feelings of the employee. The purpose behind Bill 168 on workplace
harassment and violence is to create a better work environment.
What a "better work environment" means comes from the
employees themselves. To meet the purpose behind the law, an
employer's policy should give employees an effective voice.
The employer needs a way to obtain information about the
employee's views or feelings and act upon it.
When drafting or reviewing workplace harassment
and violence policies, it is important that employers target the
following objectives and practices:
Make sure the employee has a voice;
Make sure that the policy actually makes the work environment a
better place based upon what the employees identify as their
Have a complaints process for when the employee wants to
complain about the policy or how it is being implemented (or
Offer alternative complaints processes where the complaint is
against the individual whom the policy identifies as the person
responsible for receiving or considering the complaint;
Highlight that employees are welcome to provide general
feedback about the policy (and how it is actually working) at any
Have a mechanism for follow up to ensure that after a specified
period of time each and every complaint has been addressed and any
and all recommended resolution steps or actions have been
Build in active solicitation of feedback on the policy -
whether through anonymous surveys, committees struck to revisit and
update policies on a regular basis, or other opportunities.
A standard form harassment and violence policy may not
always address the specific concerns of the employees in a specific
workplace. Employers need to be engaged and flexible to
improve their policies. Management needs to follow through on the
policies. If an employer finds itself in front of the press
or an adjudicative body, the scrutiny will not stop at the policy,
but will extend to the conduct and practices of the people
responsible for writing and implementing the policies.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).