By Caroline Spindler, Kyle MacIsaac and Tara Erskine. Firm: Mathews, Dinsdale & Clark LLP
The second part of this two-part review of the labour and employment year in Atlantic Canada covers developments in New Brunswick and Edward Island.
In New Brunswick, amendments to the Occupational Health and Safety General Regulations came into force on 1 April 2019 that specifically address harassment in the workplace. New Brunswick employers are now required to establish a written code of practice for harassment at the place of employment. The code of practice for harassment must include:
- a statement that every employee is entitled to work free of harassment;
- the identity of the person responsible for implementing the code of practice;
- a statement that an employee shall report an incident of harassment to the employer as soon as the circumstances permit;
- the procedure the employer must follow to investigate and document any incident of harassment of which the employer is aware;
- the manner in which affected employees shall be informed of the results of an investigation;
- the procedure the employer must follow to implement any corrective measures identified as a result of the investigation;
- the follow-up measures to be used with affected employees; and
- the identification of training needs.
The code of practice for harassment must be sufficient to provide for the health and safety of the employees to the extent possible and copies must be readily available for employees on request. The code of practice must also be implemented and followed.
The privacy provisions in these regulations prohibit an employer from disclosing the identity of any person who is involved in an incident of harassment or the circumstances related to the incident except when necessary in order to investigate the incident, when required in order to take corrective measures in response to the incident, or as required by law.
Employees and supervisors must be provided with training on the code of practice for harassment and training records kept. The code must be reviewed annually and must be updated when there is a change in conditions in the place of employment.
Case law on employer and employee conduct
Bad behaviour of both employees and employers was considered by the New Brunswick courts in 2019. Martin, Allain, LeBlanc, Bourque v Total Credit Recovery (2019 NBQB 102 (CanLII)) was a summary judgment motion brought by the plaintiffs in relation to an action for damages for wrongful dismissal against their former employer. The summary judgment motion was granted and the plaintiffs were awarded damages for pay in lieu of notice of termination, loss of vacation pay and loss of benefits. In addition, the motion’s judge also considered the plaintiffs’ claims for punitive damages against the employer. The employer had been aware that it would be ceasing its operations, and advised its clients of its closure in advance, but failed to advise the employees of the closure until the day the closure took place, providing them with only two weeks’ pay in lieu of notice of termination. The motion’s judge found that this aspect of the employer’s conduct in the manner of dismissal was egregious and awarded the plaintiffs an additional four months’ notice in punitive damages.
In Abrams v RTO Asset Management (2019 NBQB 129 (CanLII)), the plaintiff brought an action for damages against his former employer for wrongful dismissal. The employer brought a motion for summary judgment to dismiss the claim, alleging that it had just cause to dismiss the plaintiff. The basis for the just cause termination was the plaintiff’s involvement in a relationship with another employee whom he was obliged to supervise. The plaintiff provided advice to the employer based on his desire to benefit the employee; provided the employee with inside information about future events; failed to report the relationship to the employer as required; and lied to the employer when questioned about the relationship. The motion judge found that the plaintiff engaged in the alleged behaviour; was aware that it was wrong and could have serious consequences; but continued with the relationship regardless. In light of these findings, the ‘for cause’ termination was justified.
Prince Edward Island
Like Nova Scotia, New Brunswick and Newfoundland & Labrador, Prince Edward Island also focused on workplace harassment in 2019. Amendments to the Occupational Health and Safety Act Regulations addressing workplace harassment moved through the legislative process in 2019 and will come into force on 1 July 2020.
Harassment will be defined as:
any inappropriate conduct, comment, display, action or gesture or any bullying that the person responsible for the conduct, comment, display, action or gesture or the bullying knows, or ought reasonably to know, could have a harmful effect on a worker’s psychological or physical health or safety, and includes:
- conduct that is based on any personal characteristic such as, but not limited to, race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, gender identity or pregnancy; and
- inappropriate sexual conduct that is known, or ought reasonably to be known, to the person responsible for the conduct to be unwelcome, including, but not limited to, sexual solicitations or advances, sexually suggestive remarks, jokes or gestures, circulating or sharing inappropriate images, or unwanted physical contact.
Harassment will also include:
- repeated inappropriate conduct, comments, displays, actions or gestures or incidents of bullying that have a harmful effect on the worker’s psychological or physical health or safety; and
- a single occurrence of inappropriate conduct, comment, display, action or gesture or bullying that has a harmful effect on the worker’s psychological or physical health or safety but does not include reasonable action taken by an employer or supervisor relating to management and direction of the workers or of the workplace.
An employer who knows or ought reasonably to know that harassment in the workplace is occurring must ensure that:
- the source of the harassment is identified and the harassment stopped; and
- reasonable steps are taken to remedy the effects of the harassment and to prevent or minimise future incidents of harassment.
Prince Edward Island employers will be required to keep the details of the harassment complaint confidential, unless, and to the extent that disclosure is necessary in order to report the incident of harassment or to cooperate in the investigation of the complaint. Workers must also cooperate in the investigation of complaints.
Employers will also be required to develop and implement a written policy to prevent and investigate harassment in the workplace that includes the following:
- a definition of harassment that is consistent with the definition of these regulations;
- a statement that every worker is entitled to work free of harassment;
- a commitment that the employer shall ensure, as far as is reasonably practicable, that no worker will be subjected to harassment in the workplace;
- a commitment that the employer shall take corrective action respecting any person under the employer’s direction who subjects a worker to harassment;
- information or procedures about how to make a harassment complaint to the employer or supervisor, how to make a harassment complaint to a person other than the employer or supervisor, if the employer or supervisor is a subject of the complaint, how a harassment complaint will be investigated, and how the complainant and subject of the complaint will be informed of the results of the investigation and any corrective action that has been or will be taken as a result;
- a statement that the employer shall not disclose any identifying information about any person involved or the circumstances relating to the complaint to any person unless disclosure is necessary for the purposes of investigating the complaint or taking corrective action with respect to the complaint, or permitted by law;
- a statement that the employer’s harassment policy is not intended to discourage, prevent, or preclude a complainant from exercising other legal rights pursuant to any other law;
- a statement that the employer’s harassment policy does not preclude a worker from filing a complaint under the Human Rights Act (R.S.P.E.I. 1988, Cap. H-12); and
- a statement that the employer shall not reprimand, seek reprisal or discriminate against a worker who has made a workplace harassment complaint in good faith.
A copy of the policy must be made readily available to employees.
Prince Edward Island employers will also have an obligation to conduct an investigation into the complaint. Investigations may be referred to an impartial person either within or outside of the workplace who is not directly involved in the incident or the complaint; is not directly under the control of the person who is the subject of the complaint or otherwise in a conflict of interest; and has knowledge of the workplace harassment provisions, and the regulations and other applicable laws. If an investigation is carried out by an impartial person, that person must make a determination as to whether the harassment occurred and may also make recommendations. If recommendations are made, the employer will be required to determine the corrective action required in the circumstances and implement the corrective action.
Can off-duty conduct constitute legitimate grounds for dismissal?
The ever-present question of whether off-duty conduct can constitute just cause for dismissal was considered by a Prince Edward Island arbitration panel in Canadian Union of Public Employees, v A Nursing Home Inc. (2019 CanLII 67551 (NB LA)). The individual who brought the complaint was terminated for cause after pleading guilty to a charge of assault. The charge arose from an off-duty incident in which the employee was wrestling with a 15-year-old. At the time of the charges, the individual was employed as a resident care worker at a nursing home providing personal care to vulnerable seniors. The majority of the panel concluded that although the employee had a clean disciplinary record, there was a serious reasonable negative impact on the reputation of the employer as there was a clear nexus between the individual’s employment providing personal care to vulnerable persons in a setting which generally lacks direct and continuous supervision and the interaction with a vulnerable person resulting in the assault and the grievance was dismissed.
These developments, in conjunction with Part One of this review, show a clear emphasis on harassment in the workplace over the past year, as well as on domestic and family violence. This emphasis reveals a shift in thinking towards psychological and mental health issues. It will be interesting to see how the law on these topics will continue to progress throughout the coming year so stay tuned to see what 2020 will bring.