Workplace Harassment, Discrimination and Wrongful Dismissal
As employees, we spend the majority of our daily lives at the workplace. As with any human interaction, workplace conflicts are an inevitable part of an employee’s work life. While workplace conflict is typical, not all employees have the ability to be able to cope with the resulting mental distress and discomfort. In many cases, work-related stress results in the employee suffering from anxiety and depression.
When an employee experiences workplace harassment, it could be caused by their superior manager, another colleague or customers. In either case, it will often result in the employee feeling stress that is debilitating and unsure about to resolve the situation.
In dealing with workplace harassment and reprisal claims, an important initial step the courts typically consider is how much documentation the employee has to support their claim, including for wrongful dismissal. Generally, the more supporting documentation an employee has, the more protection they have against losing their job for complaining about workplace harassment.
Review Workplace Harassment Policy
It is important to review an employer’s workplace harassment and violence policies. Among other things, these help define what sorts of incidents qualify as harassment (with examples), as well as the employer’s procedure for an employee to file a workplace harassment complaint. For instance, it may require the employee to consider speaking with the Human Resources department when they experience an incident of workplace harassment.
Most employers in Ontario are subjected to the Occupational Health and Safety Act, which means they must prepare policies with respect to workplace violence and harassment and review them at least once a year with their employees. Among other things, workplace harassment policies must include:
- measures and procedures for workers to report incidents of harassment to the employer or supervisor, and to another person if the employer or supervisor is the alleged harasser
- how incidents or complaints of harassment will be investigated and dealt with
- how information obtained about an incident or complaint of harassment, including identifying information about any individuals involved, will not be disclosed unless necessary for the purposes of investigating the incident or complaint, or for taking corrective action, or is otherwise required by law
- how certain workers will be informed of the results of the investigation and of any corrective action.
Identify Workplace Harassment
Under Ontario’s Occupational Health and Safety Act, the term “workplace harassment” is defined as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known (or should be known) to be unwelcome,” and includes workplace sexual harassment.
Oftentimes, harassment at work can be based on an employee’s personal human characteristics. For example, the Human Rights Code, employees are protected from unfair and unequal treatment due to their age, sex, religion, disability or sexual orientation. In such cases, the workplace harassment also constitutes illegal discrimination.
Gather Supporting Evidence
When employees experience workplace harassment and discrimination, some of the documentation that is important in help to establish an employer’s reprisal for workplace harassment, including emails, letters, performance evaluations and simultaneous notes of workplace incidents. However, sometimes employees may lack supporting documentation, which means it may also be important to determine if there are actual witnesses of the harassing behaviour who can provide detailed accounts of what they heard or saw.
Workplace Harassment Complaint
Depending on who the perpetrator of the harassment, employees may consider submitting a workplace harassment claim to their direct manager or supervisor. However, if one of these individuals is the person committing the workplace harassment, employees may need to considering reaching for help directly from the company’s human resources department.
Once an employee files a workplace harassment complaint, it provides written evidence of the workplace harassment (or discrimination) claim. This will then help protect the employee in providing a wrongful dismissal (or reprisal) claim if the employer decides to retaliate by firing the employee from their job (e.g., evidence that the employer terminated the employee from their job because of their workplace harassment concerns).
Based on court decisions, it is important for employees to document every step of the workplace harassment process (and incidents). If an employer decides to fire an employee “without cause,” the employee can then have helpful evidence to back up their claim of wrongful dismissal.
Contact Us
If you are an employer, you should speak with an employment lawyer to discuss your options before making the decision to terminate an employee’s job, and obtain the proper termination documentation for your employee to avoid a wrongful dismissal claim or constructive dismissal.
If you are an employee who has been terminated with or without cause, including after complaining about workplace harassment or discrimination, it is important to seek legal advice to discuss your options for severance package.
No matter which side you are on, our employment lawyer is ready to assist with your case. Please feel free to reach out to Bune Law at 647-822-5492.
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