Workplace policies are a helpful tool to provide employees with clear expectations. This may include setting parameters around expected employee conduct or outlining procedures to streamline processes. While there are a wide range of policies that any one organization may implement, it is important to ensure that as an employer, your organization has implemented those which are required by law.
Mandatory Policies Under PEI Legislation
In Prince Edward Island, for example, the Occupational Health and Safety Act, RSPEI 1988, c O-1.01 (the "OHSA") requires employers with five or more workers to implement an occupational health and safety policy.
Further, PEI's Employment Standards Act, RSPEI 1988, c E-6.2 (the "ESA") currently requires that employers have a policy statement concerning sexual harassment. Sections 24 to 28 of the ESA outline the specific terms that must be included, establish an obligation on employers to guarantee employee awareness of the policy, and outline the right of redress through the Human Rights Act, RSPEI 1988, c H-12.
Upcoming Legislative Changes
While those provisions of the ESA are presently in force, Prince Edward Island's new ESA received Royal Assent on November 29, 2024, and is expected to come into force later this year. The new ESA does not contain the sexual harassment provisions outlined above as the Workplace Harassment Regulations, PEI Reg EC710/19 have been identified as the proper avenue to address workplace harassment.
The changing legislation underscores the importance of consistently reviewing the legislation to ensure compliance. Failure to implement legislatively mandated policies can result in unfavourable repercussions for the employer.
Case Study: Milligan v. Maczak Holdings Ltd.
For example, in Milligan v Maczak Holdings Ltd., 2023 CanLII 90442, the Prince Edward Island Human Rights Commission (the "Commission") found that the Complainant had been discriminated against in the area of employment on the basis of sex. According to the Commission, the absence of a sexual harassment policy and associated training contributed to this finding.
In that case, the Complainant alleged ongoing and continuous sexual harassment at work and stated that she was terminated after advising the employer of the harassment. The employer denied the allegations of harassment and argued that the Complainant was laid off due to a lack of work. During the hearing, it was confirmed that the employer did not have a policy or provide training on sexual harassment in the workplace.
While the Commission found that the Complainant did not establish a direct link between the sexual harassment and her termination, it did determine that the Complainant experienced sexual harassment in the workplace, which amounted to discrimination based on sex.
When determining whether the complainant experienced discrimination in employment contrary to the Human Rights Act, supra, the Commission considered that the employer did not have a sexual harassment policy. The Commission stated as follows at paragraphs 63 and 73:
63. The Respondents may not have seen issues or may not have known how to deal with the issues (or may not have wanted to deal with them) but they are still responsible. This combined with having no policy or training allowed sexual harassment to be normalized and become part of the work culture.
[...]
73.Combined with no policy or training about sexual harassment and no active responses to complaints by the owners, the working environment at Smitty's was unsafe for staff and ripe for exploitation.
[Emphasis added.]
Ultimately, the employer was ordered to pay the Complainant general damages in the amount of $15,000.00 and implement a harassment policy which was to be provided to the Commission for comment and revisions. The Employer was further ordered to provide sexual harassment training for all staff and management at its own cost.
Conclusion & Key Takeaway for Employers:
This case highlights the need for employers to review their current employment policies and seek legal advice to identify any missing policies and ensure compliance with relevant legislation.
- At a minimum, Employers in PEI require:
- a sexual harassment policy; and,
- an occupational health and safety policy (where there are 5+ workers).
- The provisions of the current ESA continue to apply until the new ESA comes into force. Although the new ESA will not contain the sexual harassment policy provisions, employers will still be required to implement harassment policies under the Workplace Harassment Regulations, supra.
- Courts and Tribunals will consider whether the employer has implemented and followed legislatively required policies. Failure to do so may result in unfavourable findings against the employer.
- Employers should review their policies on a routine basis to ensure legislative compliance.
- Employers should provide their employees with training on their policies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
