Employer Liability & Violence and Harassment in the Workplace

Transcription

1 Employer Liability & Violence and Harassment in the Workplace Leah Simon and Carissa Tanzola March 23, Yonge Street Suite 3300 Toronto, Ontario M5B 2L7 Tel Fax Hour

2 Agenda Employer s Obligations Off Duty Conduct Bill 132 Increased Liability 2

3 Employer Obligations 3

4 Employer Obligations Human Rights Code Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability 4

5 Employer Obligations Human Rights Code Every person has a right to be free from, a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement; or a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement 5

6 Employer Obligations Occupational Health and Safety Act Scope of protection under OHSA is broader than the Human Rights Code Prohibition of workplace harassment not tied to protected grounds 6

7 Employer Obligations Occupational Health and Safety Act Implement a policy and program with respect to workplace violence and harassment Include procedure to report incidents of workplace violence and harassment Set out how employer will investigate incidents of workplace violence and harassment Review policies at least one a year Train employees on policy and program 7

8 Employer Obligations Occupational Health and Safety Act Workplace Violence Conduct workplace risk assessment and communicate results Include measures to control the risks identified Include measures for summoning immediate assistance when workplace violence occurs Notify employees where risk of workplace violence from a person with a history of violent 8

9 Employer Obligations Criminal Code Organizations (act of senior officers) Negligence - A marked departure from the standard of care that could reasonably be expected Fault Intent (at least in part) to benefit the organization 9

10 Employer Obligations Criminal Code Individual Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task 10

11 Off Duty Conduct 11

12 A Recent Example Ghomeshi Affair: CBC Radio Star Jian Ghomeshi fired after rough sex claims Jian Ghomeshi s exit from CBC goes global 2 CBC managers involved in Ghomeshi scandal put on leave Fallout continues for CBC in wake of Ghomeshi Sex Assault Scandal 12

13 A Recent Example Ghomeshi Affair: Ghomeshi initially suspended and then terminated Third party investigation 13

14 Off-Duty Conduct General rule: employer is not the custodian of an employee s personal character or conduct But: there are circumstances where off-duty conduct is grounds for discipline or termination Conduct must negatively impact the employer s legitimate business interests Must be a nexus or connection between the off-duty conduct and the workplace 14

15 Off-Duty Conduct Where off-duty conduct may lead to discipline or termination: Employee unable to perform his or her job satisfactorily Harms the employer s general reputation, products, or its employees Interferes with the efficient management of the employer s operation or workforce Co-workers reluctant to work with him or her 15

16 Off-Duty Conduct Even if the conduct affects employer s interests, consider whether termination is warranted in all cases How will you prove the conduct occurred and its potential harm to your business? What are the aggravating and mitigating factors? Are there any human rights issues to consider? 16

17 Off-Duty Conduct Negative impact to business interests: Public controversy? Negative press? Negative impact on business plan or objective? Employer need only show potential harm (and not actual) 17

18 Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment),

19 Bill

20 Bill 132 Ontario Bill 132, Sexual Violence and Harassment Action Plan Act Tabled October 27, 2015 Received Royal Assent March 8, 2016 In force September 8,

21 Bill 132 Bill 132 aims to protect Ontarians from sexual violence, sexual harassment and domestic violence, amending the Occupational Health and Safety Act by: Expanding the definition of workplace harassment to include workplace sexual harassment 21

22 Bill 132 Bolstering workplace violence and harassment policy requirements: Reporting measures and procedures for workers if alleged harasser is supervisor or employer Information regarding how complaints will be investigated and dealt with Information regarding disclosure/confidentiality Information regarding how the complainant and harasser will be advised of results of investigation 22

23 Bill 132 Positive obligation on employer to investigate (and may be ordered to use a third party investigator) Employer required to annually renew program and train workers on the policy and program Bill 132 also eliminates the 2 year statutory limitation period for civil proceedings involving sexual assault 23

24 Bill 132 Practical Application: Review policy and procedures Ensure training is up-to-date Train supervisors on how to properly implement the policy and procedures Investigate all complaints and make decisions based on findings 24

25 Increased Liability 25

26 General Damages Traditionally: general damages for most sexual harassment cases have been less than $20,000 Recently: general damages are increasing, depending on findings of employer/supervisor conduct 26

27 O.P.T. v Presteve Foods Ltd. Findings of fact extensive and unprecedented : Two temporary foreign workers subjected to a sexually poisoned work environment Unwanted sexual solicitations and advances, sexual assault and touching, discrimination on the basis of sex Felt as if no choice but to comply with sexual demands in order to keep job and avoid deportation 27

28 O.P.T. v Presteve Foods Ltd. HRTO recognizes the unique position of vulnerability of temporary foreign workers Employer ordered to pay $200,000 to two complainants Unprecedented quantum of damages: 3x greater than the previous highest award ordered by HRTO The ceiling has been raised? 28

29 Criminal Liability Bill C-45 Obligation to protect persons not just workers Charges may be against supervisors, managers, JHSC, owners 29

30 Criminal Liability R v. Kazenelson Charged with: 4 counts of criminal negligence causing death 1 count of criminal negligence causing bodily harm Guilty of all 5 charges Sentenced to 3.5 years imprisonment for each count (concurrent) appeal filed 30

31 Criminal Liability R v. Kazenelson Relevant and distinguishing facts: OHSA and Regulations relevant to identifying what is reasonable Became aware, in advance of the collapse, that there were only 2 lifelines and the swing stage was being used by 6 workers 31

32 Criminal Liabilities R v. Kazenelson Relevant and distinguishing facts: Asked supervisor about absence of lifelines but did not insist that the issue be resolved Was on swing stage at time of collapse Did not direct or pressure workers to work without life lines Did not have responsibility for inspecting the swing stage each day 32

33 250 Yonge Street, Suite 3300 Toronto, Ontario, Canada M5B 2L Phone Hour Fax 33

34 The information contained in this presentation is provided for general information purposes only and does not constitute legal or other professional advice. Reading this presentation does not create a lawyer-client relationship with Sherrard Kuzz LLP. Readers are advised to seek specific legal advice from members of Sherrard Kuzz LLP (or alternate legal counsel) in relation to any decision or course of action contemplated. 34