According to a 2018 survey, one in two Canadians reported being bullied at work. As an employment law firm in Toronto, we are often consulted about workplace bullying.
‘Bullying’ is not a legal term but is often used colloquially to refer to workplace harassment. Under the Ontario Occupational Health and Safety Act (OHSA), ‘harassment’ is defined as vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome. Workplace harassment can take a variety of forms and may include:
- Verbal abuse
- Belittling or embarrassing the employee in front of others;
- Offensive remarks, name-calling, insults, or jokes;
- Spreading malicious gossip or rumours;
- Discriminatory remarks or actions;
- Singling the employee out or isolating them from various workplace events or activities;
- Creating a hostile work environment;
- Sexual harassment
Harassment is assessed based on an objective standard. Therefore, not all workplace conflicts or behaviours which cause someone to feel uncomfortable meet the legal standard of workplace harassment.
On the flipside, if the perpetrator claims to be unaware that their behaviour was unwelcome, the behaviour may still be harassment if a reasonable person in the same situation would have known that the behaviour was unwelcome. In other words, it is not an excuse if the perpetrator was willfully blind to the impact of their workplace bullying, nor is it an excuse if they did not intend to make the employee feel uncomfortable.
All provincially regulated employers in Ontario have a statutory duty under the OHSA to maintain a safe workplace and to take every reasonable precaution under the circumstances for the protection of a worker. This includes protecting their employees from workplace bullying.
Specifically, an employer is required to prepare a workplace harassment policy pursuant to the OHSA. They must also implement complaint procedures to ensure that employees can file a confidential workplace harassment complaint. Employers must also meaningfully and thoroughly investigate complaints of harassment and notify complainants of the results of the investigation, including any corrective actions taken.
If an employer fails to comply with these duties, upon a complaint to the Ministry of Labour, a Ministry of Labour inspector may initiate an investigation and issue compliance orders and/or fines. Inspectors can compel the employer to appoint an outside investigator if the employer failed to adequately investigate the harassment complaint. The Ministry of Labour, however, has no authority to order an employer to compensate victims of harassment.
In most cases, victims of harassment feel forced to resign because of the emotional distress associated with a toxic work environment. In the event of job loss due to workplace harassment or bullying, the employee may commence a civil claim for compensation from their employer, including among other remedies, damages for lost wages and benefits (constructive dismissal damages), punitive damages and damages for emotional distress.
One of the best things employees can do is to report the harassment to a trusted member of management as soon as possible. The harassment is likely to continue if no one is aware of the problem and therefore unable to intervene.
One of the most common concerns among victims is the fear of retaliation. Know that it is against the law for an employer to retaliate against a worker for reporting harassment in good faith, for cooperating with a harassment investigation or otherwise assisting a complainant in coming forward with their harassment complaint.
You should also maintain accurate records and notes about the harassment, including date, time, place, a description of what happened and a list of any witnesses. Preserve physical and electronic documents, including any emails, text messages or anything that corroborates your complaint. Supporting documentation is particularly useful if the harassment is being denied.
Finally, if you are experiencing bullying and harassment in the workplace or suffered retaliation because of a harassment issue, speak with an employment lawyer for advice about your legal rights and options. Employees have rights, and their respective employers have a duty to protect the physical and mental health of their employees.
For more information, contact the experts at Pak Smith Employment Lawyers today.