In our previous post, we discussed the employer’s obligation to protect workers from violence, harassment and sexual harassment in the workplace and covered the broad definition of the workplace. Then we posed a variety of tough questions around what to do when the perpetrator of that violence or harassment towards the worker is someone the organization needs. Is tolerating bad behaviour from an important donor just the cost of doing business? And if so, what are the costs?
Taking steps to protect workers from violence, harassment and sexual harassment is the law. Employers – and by the way, an employer is defined in the Occupational Health and Safety Act (OHSA) as anyone who employs or contracts for the services of ONE or more workers – must have policies and programs in place regarding their OHSA violence and harassment obligations. Check out the Ministry of Labour’s Guide on this topic for a helpful breakdown. The truth of the matter, however, is that often even employers who have their ducks in a row in terms of policies and programs do not walk the walk when it comes to important clients, investors or donors and look the other way when it comes to bad behaviour. So what happens then?
Complaints and Investigations
If an employee is being harassed and they either complain – formally or informally – or the employer somehow comes to know about the harassment, the obligation to conduct an investigation appropriate in the circumstances is triggered. This is a legal requirement under OHSA and can be a really big deal. If the alleged harasser is someone powerful either in the organization, or an important donor or client, it will likely be difficult to keep the investigation in-house. The person who investigates should neither be involved in the incident nor under the control or influence of the harasser. If the harasser is powerful, it will likely be best to retain a neutral 3rd party investigator. Our own Marnie Baizley is one of these investigators, so feel free to give her a call if you want to learn more.
Investigations can be expensive and disruptive. Arrangements must be made while the investigation is taking place to protect workers and witnesses – this could mean temporarily re-assigning people so they don’t work together, for example.
The investigator will make findings about the allegations and the employer will need to take action based on those findings.
The Consequences of Tolerating Bad Behaviour: Employer Liabilities
While investigations, and whatever tough decisions flow from their findings, aren’t cheap or easy, there are also liabilities for an employer if proper actions regarding harassment are not taken.
Employees who experience harassment in the workplace have the option to bring a variety of claims against an employer who did not take adequate steps to protect them. These could be in the form of notice damages if, for example, an employee leaves claiming that the harassment they endured constituted a constructive dismissal. Employers could also be liable for damages for bad faith, where the employee suffered mental distress as a result of the harassment, or human rights damages where the harassment has a connection to a protected ground, such as sex. Damage amounts are all over the map, but the mere fact of having an employee or ex-employee send an organization a demand letter will start the clock on what can be huge legal fees and a huge suck of energy and moral for an organization.
Employees who feel that their employer is not taking steps to protect them can also complain to the Ministry of Labour, who will then investigate themselves and potentially issue an order to the organization to do something. Often the order will be that the employer conducts an impartial investigation into the harassment complaint. Ministry of Labour inspectors can also initiate Provincial Offences prosecutions for violations of OHSA.
Employer Excuses – But we need that guy!
The need to preserve donor, client or business relationships is not a sufficient excuse for not complying with the law. Employers may think that a decision maker will be sympathetic to them if they could only know how much the organization relies on the harasser and his or her money, but this is not the case. Even if protecting employees from harassment might mean losing the funding that pays their salary, employers still have a legal obligation to protect employees from harassment. The consequences will not be any lighter because of how needed the harasser is.
While looking the other way may be tempting when the harasser brings needed funding or work, not complying with the law and not letting these offending individuals know that their behaviour is unacceptable can be hugely expensive and embarrassing for an organization. Not to mention disruptive and potentially harmful to employees and the workplace. Fortunately, we are seeing a cultural shift where more bad behaviour is being exposed, instead of silently tolerated, and where bullies and harassers are being stood up to. The more we all do our part within our own organizations the faster this needed change will come.