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Being harassed at work? What to consider when deciding what to do next


If you’ve been the victim of harassment at work, it can be difficult to feel like you’re not alone – and even harder to know who to contact to file a complaint.

However, experts say there are a number of avenues for employees to pursue, no matter where they are and no matter the size of the company they work for.

Legislation on harassment at work

What is the most important starting point for exercising your rights as an employee? Knowing which law applies, said Jon Pinkus, an employment lawyer and partner at Samfiru Tumarkin LLP in Ontario and British Columbia.

“Most provinces have specific legislation that protects workers from workplace harassment,” he said. “For example, in Ontario, it’s the Occupational Health and Safety Act. In British Columbia, it is the Workers Compensation Act.

However, federally regulated sectors, such as airlines, banks and most crown corporations, may instead fall under the Canada Labor Code.

From these laws, employees can derive the definition of harassment as it applies to their jurisdiction.

“What is important for employees to note is that this does not include performance management which can be uncomfortable or even harsh,” Pinkus added. This means that when an employer uses reasonable methods to help an employee improve – such as developing a performance improvement plan for a worker who consistently underperforms – a harassment claim may not be viable .

“A lot of the debate about whether something constitutes harassment focuses on that,” he said.

Prepare to file a complaint

Regardless, if someone feels like they’re being harassed at work, Pinkus stressed the importance of recording the behavior early on — which Bea Bruske, president of the Canadian Labor Congress, echoed .

Harassment “doesn’t usually start with one incident or a bad joke, or with someone doing something specific to you one time,” she said. “These things often escalate over a longer period of time, so it’s important to document this escalation as evidence of the larger problem.”

Pinkus also noted that employees should ensure that when recording evidence, they do so in writing (or another medium, such as photos, video, or audio) by reporting the issue to their manager or the human resources department by email as soon as it occurs.

“Employees should also not be afraid to record (the audio of) an incident if they can,” he said, “because in Canada, recording private conversations is legal as long as that one of the parties consents – which, in this situation, could be the employee.”

Without evidence like this, “for all legal purposes, harassment doesn’t exist,” Pinkus added.

Legal remedies

While there are myriad options for employees to assert their rights against workplace harassment in Canada, Bruske said employees should start by trying to resolve the issue internally – whether by raising the problem themselves with the harasser or by contacting a manager or human resources department to find a solution.

“The overriding thing to keep in mind is that the employer has an obligation to address workplace harassment and violence and ensure the safety of its employees,” she said. This includes ensuring that appropriate policies, protocols and services are in place for preventing and responding to harassment, as well as support mechanisms for employees who file harassment complaints in the first place.

“The point is, they should create a culture where workers feel comfortable reporting these incidents,” Bruske said, “because not every worker is going to feel comfortable doing so,” particularly if they fear retaliation.

For union workers in particular, Bruske stressed the importance of first going to the union’s occupational safety and health committee and then filing their grievance under their collective agreement — which in many provinces, is a mandatory process.

When internal resolution mechanisms are not possible – for example, if one works for a small business where the instigator is the owner or director themselves – Pinkus said employees have three main legal recourses: file a complaint with the ministry or provincial labor board. , open a file at the human rights tribunal or take their chances in litigation where they feel they have no choice but to resign from their position.

However, to bring a claim to a human rights tribunal, an employee must be able to demonstrate that they were discriminated against on “enumerated grounds”, which are specific identity categories against which employers cannot discriminate, such as race, gender identity or sexuality.

This may differ across Canada depending on each province or territory’s human rights code, Pinkus said. For example, British Columbia protects political affiliation as an enumerated ground, but Ontario does not.

“It may differ across Canada,” Pinkus said. “For example, political affiliation is a protected ground in British Columbia, but not in Ontario. »

Ministry involvement and human rights tribunal decisions can order changes to a workplace to resolve the problem – although the former is less likely to award compensation to employees.

Finally, although employees may attempt to claim that they were victims of constructive dismissal – where an employee alleges that their employer created such a hostile work environment that they had to resign – such cases are extremely difficult to win.

“Proving that a work environment is so toxic or so poisonous that you basically have no choice but to leave is a very high bar to meet,” he said, “which is why I generally does not recommend (constructive dismissal claims) unless it is a very clear case.

Keeping a good paper trail of evidence is especially important for employees wishing to file such complaints, because complainants generally must prove that their superiors knew about the harassment – and allowed it to happen, regardless – to succeed. cause before the court.

Make a final decision

Ultimately, while not every case is the same, Pinkus stressed the importance of employees knowing that they shouldn’t take what their employer tells them “at face value.”

“They might not tell you they owe your salary, your severance or a safe work environment,” he said. “Remember that employers have different interests than you, which may mean you will have to manage some of these things on your own.”

Additionally, Bruske stressed that workers should know that anti-harassment laws in the workplace also apply to third parties, not just employers or co-workers.

“The employer always has an obligation to protect its employees from harassment by customers or bosses,” she said. “It can start with something as simple as posting notices that harassment will not be tolerated, or abandoning a strict ‘the customer is always right’ attitude.

“But the most important thing is that employees start reporting the situation, because if it’s not reported, it will usually result in escalation,” she said, “and you have the right to feel safe and supported where you work. »

– Pascale Malenfant is a law student and freelance writer based in Montreal.

This report by The Canadian Press was first published March 29, 2024.


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