Canada: Employment Law 101: Workplace Harassment

But what counts as "workplace harassment" and what are an employer's obligations? This post will set out the basics.

What is Workplace Harassment?

Workplace harassment is defined under the Ontario Occupational Health and Safety Act (OHSA) as a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This can include actions like spreading malicious rumours, gossip, or innuendo, excluding or isolating someone socially, intimidating a person, making offensive jokes or comments (verbally or in writing), undermining or deliberately impeding a person's work, or physically abusing or threatening abuse. It's important to note that a one-off incident can be considered harassment if it's severe and has a lasting harmful effect on the employee.

What is NOT Workplace Harassment?

Workplace harassment should not be confused with legitimate, reasonable management actions that are a normal part of work, including measures to correct performance deficiencies, such as placing someone on a performance improvement plan or imposing discipline for workplace infractions. OHSA does not specifically define "reasonable management actions". However, in the context of workplace safety and health, reasonable management actions refer to actions taken by employers or supervisors that are considered fair, appropriate and necessary for managing workplace operations or employee performance. These actions may include providing constructive feedback, disciplining employees for misconduct, setting performance goals, implementing organizational changes, and assigning work. Although the OHSA does not explicitly define this term, it provides guidelines on employers' responsibilities to ensure a safe and healthy work environment, which includes conducting their management actions in a reasonable and non-discriminatory manner. It's important to note that while employers have the right to manage their employees, their actions should not cross into the territory of harassment or bullying. If an employer's actions are causing distress or harm to an employee, they may not be considered as "reasonable".

What is an Employer's Duty when a Harassment Complaint is filed?

In Ontario, OHSA requires employers to investigate all complaints which fall within the statutory definition of "workplace harassment". Depending on the scope of the complaint, the investigation may range from simply asking the complainant about their concerns to hiring an external investigator for a comprehensive investigation. Here is the section in OHSA that sets out the requirements when an employer receives a harassment complaint:

Duties re harassment 32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that, (a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances; (b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; (c) the program developed under section 32.0.6 is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment required under clause 32.0.1 (1) (b); and (d) such other duties as may be prescribed are carried out.

If you receive a complaint of harassment, it's important to take it seriously and act promptly. Few require a Watergate level of investigation, but all will require some level of action and response to the employee.