Changes To The Occupational Health And Safety Act That Address Workplace Harassment
All employers who have five employees or more have to enact a policy preventing workplace harassment. Under the Occupational Health and Safety Legislation, there are strict guidelines set out for the creation of this policy.
Workplace harassment generally used to fall under the Ontario Human Rights Code, in which it was prohibited to discriminate or harass an employee based on their disability, gender, religion, or race. The amendments to the Occupational Health and Safety Legislation prevent workplace harassment that is defined as “any course of vexatious comment or conduct against the worker in a workplace that is known or ought reasonably to be known to be unwelcome.”
The new changes to the legislation are very, very broad. Now, if an employer calls his or her employees names or bullies them, the action would qualify under the Occupation Health and Safety Legislation as workplace harassment. If action isn’t taken to address the problem, they will be breach of the legislation. Case law has evolved in tandem with the legislation. In a December 2009 decision, general harassment or bullying that did not qualify under the standards of the Human Rights Code still justified a remedy that the employee was entitled to. In that case, Cooke v. HTS Engineering Ltd., the person was awarded notice and mental distress damages.
Another remedy that is available under the Occupational Health and Safely Act is reinstatement. If you have been treated poorly and if you allege that you have been terminated for making a complaint, you can claim reinstatement.
The legislation also includes a right to refuse work until a complaint is dealt with. It used to be that the legislation was quite narrow in terms of the circumstances under which an employee could refuse to work. Generally, they had to continue to work and allow the employer the opportunity to resolve the issue. The new legislation says that the worker has a right to refuse work based on the conduct of the employer or other person. A worker can refuse to work if workplace violence is likely to endanger him or herself. In the case of harassment, I think that the safer route is not to refuse work. Based on the interpretation from case law, I think an employee who refused work pending the investigation would have a much weaker case.
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.