Employers in Ontario have numerous obligations when it comes to establishing and maintaining a safe and healthy workplace. These concurrent obligations flow from a variety of sources: Ontario’s Human Rights Code, Ontario’s Occupational Health and Safety Act (OHSA), and the common law. Throughout these Acts and laws, employers have certain obligations and one such obligation is the requirement to respond and investigate if any employee complains of workplace harassment. This obligation comes from section 32.0.7 of the OHSA.
In Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343, the Ontario Superior Court of Justice released a decision last year regarding an employer’s obligations following an employee’s harassment complaints. Here, an employer was found liable for not conducting an investigation after an employee made numerous complaints about harassment she was suffering by another employee. The employee complained on a number of occasions about the conduct of another employee and the distress it was causing her. The employer responded cursorily to her complaints and advised he would direct her complaints to human resources. No investigation was conducted despite these allegations of workplace harassment.
Unfortunately, the situation between the employees continued to be hostile, culminating in the one employee becoming physically violent against the complainant. The complainant filed a police report in regard to the incident at work and on that same day was fired. She received no termination package.
The Court was not welcoming of the employer’s actions. Not only did the employer fail to provide the employee with her reasonable notice period upon termination, but the employer was found to have aggravated her damages by failing to conduct an investigation of the allegations of harassment. The terminated employee, a 73-year old, long-service employee in an administrative position, was awarded 19 months of notice. Further, the employee was awarded aggravated damages in the amount of $50,000 for the employer’s contribution to her distress. Failing to address the harassment complaints worsened the complainant’s mental health as the lack of action perpetuated the toxic working environment.
It is important that employers take seriously the numerous legal obligations they have when it comes to workplace health and safety. Where triggered, an employer’s investigative obligations should be taken seriously. The courts have and will scrutinize the investigation to ensure that it took into account all relevant factors and was sufficiently thorough. An employer should not underestimate the judicial scrutiny of a workplace investigation. As well, an employee should understand what the employer’s obligations are in responding to a complaint of harassment in the workplace, from immediate safety precautions to a detailed investigation and response.
An experienced workplace lawyer can be instrumental in clarifying responsibilities, obligations and the communication requirements between employees and employers in these types of workplace situations. We invite you – whether employee or employer – to contact one of our lawyers and learn more about your rights and obligations.
