In terms of the workplace harassment requirements, an employer has to include, within their policy, measures and procedures for workers to report incidents of workplace harassment.
The employer also has to set out the means by which the employer will investigate and deal with incidents and complaints of workplace harassment.
The legislation requires that the words and actions of the person being accused be objectively assessed to the extent that a reasonable person would consider it to be a vexatious comment or conduct. Whether the employee treats it as such or complains about it is irrelevant. The employer should have known that the conduct was inappropriate. In a recent case, failure to report unwelcome conduct was not in breach of the employment contract and did not act to nullify or reduce the veracity of the claim. This suggests that the employee is not under an obligation to report the unwelcome conduct. The employer has a self obligation to monitor him or herself.
Because of the power imbalance in an employee’s relationship with a supervisor and the perceived consequences to objecting to a supervisor’s behavior, an employee may go along with the conduct. In those circumstances, the employee may be thought to be consenting to unwelcome conduct because the employee feels constraint from objecting. The Ontario Court of Appeal has said the failure to object does not result in consent. It just means that, because of the power imbalance, the employee felt restrained not to complain. The employer still has that common obligation to objectively assess the conduct and come to a conclusion. The employer has an obligation to present and uphold the certain minimum standard of conduct within the workplace. Failure to do that maybe grounds for an employee’s claim of constructive dismissal and/or a breach of the new changes as of June 2010 of the Occupational Health and Safety Legislation.
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If you, or someone you care about, is dealing with employment law issues in the Ottawa, Ontario Region, contact Law Office of Melynda Layton for a consultation.
This podcast is taken from a Mar 29, 2010 interview with Melynda Layton, Employment lawyer with Melynda Layton Barrister & Solicitor, Ottawa Employment Lawyers. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.
