The holiday season is fast approaching and with it comes the season of office parties. Did you know that an employer's obligation to provide a harassment-free workplace for employees extends to work-related activities outside regular working hours?
What should you do to make sure the party goes off without a hitch?
1. Know your obligations
In Ontario, the term "workplace harassment" is defined under the Occupational Health and Safety Act (the "OHSA") as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome".
Workplace harassment also includes sexual harassment. The definition of sexual harassment in the OHSA is basically the same, but applies when the vexatious comments or conduct are based on sex, sexual orientation, gender identity or gender expression. Depending on the context, trying to kiss a colleague under the mistletoe or making unwelcome jokes about a person's sexual orientation can both constitute sexual harassment.
The Ontario Human Rights Code (the Code) prohibits harassment in the workplace where the harassment is based on sex, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
In general, the Code provides that an organization that employs an employee is liable for any act done by that employee in the course of employment, as if the organization itself had done the act… except for harassment and sexual harassment in the workplace (see section 46.3 of the Code). Note, however, that this does not mean that an employer will never be held liable for such acts by an employee, even where the employer was unaware of these acts! In certain circumstances, the common law may apply and the employer held vicariously liable (see Bazley v. Curry,  2 SCR 534).
In any event, in all cases (including under the OHSA), even in the absence of vicarious liability, employers are required by law to take all reasonable steps to provide a harassment-free workplace for employees.
2. Don't remain passive on the pretext that the person refuses to file a formal complaint under your harassment policy
An employer who does not directly contravene the Code or the OHSA but authorizes, condones or closes an eye to conduct that violates these legislations is, in fact, breaking them. For example, an employer contravenes the Code where Sam, after a couple of glasses during the office party, confides in his supervisor that Lucie is constantly making racist jokes about him, and the supervisor decides to do nothing after being told.
Let's be clear: an employee does not have to file a formal complaint under the employer's harassment policy for the employer's obligation to take reasonable steps to provide a harassment-free workplace to apply, be it under the Code, the OHSA, or even the common law, where, in certain situations, the employer could be found to have been negligent or vicariously liable.
3. If an employee files a complaint under your workplace harassment policy, follow the policy's procedural steps
Sam may decide to file a formal complaint under your harassment policy. You must then scrupulously follow the steps and procedure described in the policy. A good policy guarantees that the rights of everyone, including the alleged perpetrator, will be respected. The alleged perpetrator should benefit from the principles of natural justice. For example, they should have the opportunity to tell their version of the story before you impose a sanction.
Of course, this does not mean that you cannot immediately apply measures to protect the parties while conducting the investigation. For example, you can ask the parties not to interact with each other and modify certain tasks to make this possible (if this is appropriate), or suspend the alleged perpetrator with or without pay while you complete the investigation. An administrative suspension with pay will depend, among other things, on the kind of policy you have, on the subject of the complaint, and on whether your workplace is non-unionized or unionized. All this ultimately serves to preserve the integrity of the investigation process and to maintain an organized and safe workplace.
The investigation should be effective and fair. Try to meet key witnesses in person rather than by telephone, and keep a written record of statements made by people met during the investigation. Above all, do not make a decision before you have all the relevant facts. Should a new fact arise during the investigation, consider it throughly.
4. Naturally, this presumes that you have a policy against harassment in the workplace
It is useful to comply with your policy, but to do so you must first have one, and a good one at that. Under the OHSA, employers must have a workplace harassment policy and it must be reviewed as often as is necessary, but at least annually.
The policy should set out the steps an employee should take to report incidents of workplace harassment, including the procedure to follow to report such incidents if the supervisor or other management employees is the alleged perpetrator. The policy should also describe how the investigation will be conducted. For example: will a committee be formed from designated human resources employees, or will an independent investigator from an outside agency be used? The policy should also stipulate that any identifying information collected during the investigation must remain confidential, except where disclosure is required for the investigation or under the law.
5. Apply the policy effectively and rapidly
It goes without saying that there's no point in having a policy if you're not prepared to implement it as soon as the need arises. For example, if your policy states that a given person will be available to receive an informal complaint, make sure that the person is still an employee.
Remain vigilant. You are responsible for protecting your employees from workplace harassment. As the holidays approach, take steps to refresh your employees' memories, for example, by sending them a memo or email about workplace harassment.
Julie Robinson is an associate in the Fasken Ottawa office where her practice is focused on labour, employment and human rights. She is also involved with litigation and dispute resolution for white collar defence and investigations. Before joining Fasken, Julie clerked for a judge of the Québec Court of Appeal for two years.
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