Recently, a Panam /Para Panam manager filed a lawsuit against multiple parties including former Ontario premier David Peterson alleging sexual harassment. As reported by the Globe and Mail, Ximena Morris alleges that she was harassed and then demoted following a complaint to human resources.
What is Harassment?
Ontario employees are protected against harassment and sexual harassment in the workplace. Harassment is defined in the Ontario Human Rights Code (“Code”) as a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. This definition is repeated in Ontario’s Occupational Health and Safety Act (“OHSA”).
Where the comments are sexual in nature, there are added protections in the Code. The Human Rights Tribunal has found sexual jokes and innuendos, degrading comments or unwanted touching to be sexual harassment. These are the types of incidents that Ms. Morris alleges took place during her employment.
Where harassing comments are based on a human rights ground such as age, race, and religion they are covered by both the OHSA and the Code. Where the comments are not based on these grounds, but are none-the-less malicious or distressing, they are covered by the OHSA.
What must an employer do if an employee complains about harassment?
OHSA requires employers to prepare policies to address workplace harassment and violence and create programs to implement those policies. If an employee complains about harassment, the employer must follow its proscribed policy.
Under the Code, creating and posting a human rights policy is optional, as is training employees on their rights. Despite the absence of policy requirements under the Code, an employer must take any harassment complaint seriously, respond promptly and sensitively, ensure the accused is provided details of the allegations and an opportunity to respond, and provide both the accused and the accuser with the outcome of any investigation and the employer’s proposed remedy. Failing to adequately investigate can result in damages to an employee if a claim is commenced.
What is Reprisal?
If an employee is terminated, or demoted as Ms. Morris alleges, because he or she complained about harassment, the employee can seek damages against the employer for reprisal under the Code, and now also under OHSA.
Previously, the Ontario Labour Relations Board (“the Board”) held that it did not have an authority to consider cases where employees alleged that they were terminated after complaining of harassment, contrary to OHSA. In 2013, the Board indicated that it would now consider these reprisal cases and on June 29, 2015, the Board did so.
In Saumur v. Commissionaires Ottawa, 2015 CanLII 38123, the Board made it clear that it will assume jurisdiction to address reprisal complaints. In that case, the employee complained about problematic conduct in the workplace, some of which was directed at her. The employer investigated, but failed to adequately consider the harassment issue. The employer then treated the matter as closed. Ms. Saumur was terminated two months later. The Board found that her termination was a reprisal and ordered the company to reinstate her and provide more than one year’s back-pay as compensation.
This case indicates that there are now multiple avenues where employees who face harassment, sexual or otherwise, can enforce their rights.
If you believe that you have experienced harassment or discrimination at work and would like to speak with an employment lawyer, please contact us at [email protected] or 647-633-9894.
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