Employers need well-defined policies that are readily accessible to staff to prevent workplace harassment, Toronto employment lawyer Bram Lecker tells Advocate Daily.
Lecker, principal of Lecker & Associates, says workplace harassment can result in fines and subject orders, such as apologizing and paying compensation.
“We have three avenues for the same kind of conduct. There is the Occupational Health and Safety Act (OHSA), which is a complaint procedure, and the Ontario Human Rights Code (OHRC), which is both a full investigative but mostly a litigated procedure by the Human Rights Commission. You can also go to a lawyer to sue the employer for constructive dismissal,” he says.
“The remedies are extremely powerful. That’s the fear of employers.”
Lecker says when employers draft their harassment policies, which is a requirement for companies with more than five employees, they need to ensure they are covering all the bases of what may constitute offending conduct under the OHSA and OHRC. He says that should include glaring suggestive behaviour as well as touching and intimidation.
If an employee feels harassed on the job or sees unsafe work conditions, they can file a complaint with the provincial labour ministry, Lecker says. While the employer can be penalized if a breach has occurred, there is no compensation for the complainant.
“The OHSA is a progressive piece of legislation. In my view, it’s far superior to most in the United States, but the Act does not provide for a civil remedy for complainants,” he says. “That is the main reason why it’s not used as much as the Human Rights Code.”
When an offence occurs, an employer needs to be seen to condemn the conduct and react promptly, Lecker notes. Condemnation is a defence if there is legal action.
He says harassment allegations could result in the immediate dismissal of an employee, and points to a worker at a large corporation who never had any problems in 12 years on the job.
After using the washroom at work, the man was alone in an elevator with a woman and said hello. He realized he had forgotten to close his fly and when he zipped up, the woman became alarmed and ran out screaming, Lecker says. The woman filed a complaint with human resources, and the man was fired.
“The employer realizes if there’s going to be any complaints, they would be liable for it. It’s a sudden-death, no-holds-barred, no-questions-asked response,” he says. “It’s a slippery slope and employers are motivated, unfortunately, to do this.”
Lecker says harassment cases can be difficult for an employee to fight.
“Normally in law, when an employee is accused of committing some inappropriate act, you’ve got to have very good evidence to terminate their employment, especially if that worker has a long tenure,” he says. “But in cases of harassment, especially sexual harassment, the law provides somewhat of a cushion to employers by providing a presumption and saying the employee has to prove they didn’t do it, which is very difficult.”
Lecker adds complaints need to be filed soon after an incident occurs because if more than a year has passed, it is no longer actionable under the OHRC.