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.

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.

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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.

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.

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.

By then, the accused realizes that the investigation didn’t go well and they find out about it when their employment is terminated. At that point they seek advice, but by then it is a problem because they are being reactive rather than proactive. By that time, it’s difficult to address the situation. Usually, in this kind of situation, there is something done wrong during the investigation. If somebody is professing their innocence, but an investigator finds something contrary to that, then the investigation may be flawed. It would be better if you had legal advice during the investigation itself. A lawyer can look at the information and be able to see the flaws in it.

The perfect situation is to seek legal advice before you participate in the investigation. Lawyers are generally brought in once the problem is already there rather than as a way of dealing with issues that arise within the work place. That happens because people generally feel that they should be able to resolve these things themselves and they are afraid that if they bring in a lawyer they will look guilty. You might think that if you are innocent, somebody is going to realize during the investigation that you have nothing to hide so there is no need to get a lawyer involved. The truth is that not all investigations go the way they should, and a lawyer can help.

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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.

Was the harassment being done over the e-mail system? If so, it’s important to keep track of those documents as well as any other kind of documentary evidence. There have been situations where an employee alleges sexual harassment as the reason for being terminated, and the employer representative says absolutely not, that there was no such relationship. But the situation changes when the person making the allegation produces an e-mail which is clearly supportive of his or her position. Documentary evidence is really important because it’s hard copy and it affects credibility.

Even if the harassment is verbal, or if it’s physical but there are no witnesses, keeping written notes will be useful. It’s still an issue of credibility, but anything you can do to support your case and establish your position will be helpful.

The opposition will be looking for the things in your character that might affect your credibility, but it depends on the established relevancy of this information. Although the opposition can’t call up previous criminal cases, it would be relevant to ask the accused whether he or she has been found guilty of sexual harassment before. It would also be relevant to ask whether the accuser has brought accusations before and whether these accusations were found to have substance or not. The test before the judge would be whether such information from the person’s past is not only relevant but also reliable.

From the accused person’s point of view, it’s unfortunate, but the simple fact of being accused of a crime tends to make people question you. Your character is very important in terms of protecting against these kinds of complaints, but there is no special remedy for it. It’s important that the case has some physical, objective proof, so keeping documentary evidence of your position in a harassment situation is always a good idea.

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The term “sexual harassment” includes a course of conduct that makes a person uncomfortable as a result of his/her gender. It also includes sexual solicitation or advances that are unwelcome, particularly but not exclusively where they are made by a person’s boss or superior. Sexual harassment includes unnecessary physical contact such as touching, patting, pinching, leering, kissing and hugging. It also includes verbal harassment.

To be considered sexual harassment, the conduct need not be directed at a specific person. It could involve a poisoned work environment where there is a pattern of sexually oriented remarks, insults or tones that are reasonably perceived to create a negative psychological and emotional environment.

If an employee feels that he or she has been harassed, he or she has an obligation to first of all tell the harasser that the behavior is inappropriate and give the harasser the opportunity to improve. If the situation does not improve, then the employee should bring it to the manager’s attention and ask for help to improve the conduct. If the harassment is still not being addressed, then the employee always has remedies available under provincial and/or federal human rights legislation.

No employee should have to put up with any kind of harassment in the work place, but an employee who is alleging harassment has an obligation to advise the employer and to give the employer an opportunity to improve the environment.

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The other cost is to the company’s reputation in the marketplace.

People won’t stay with an employer when they are not happy. Looking at the turnover rate in employment may be a good way for a potential employee to tell what kind of company it is. A high turnover rate might not represent the presence of harassment, but it would be a good indicator to all sorts of different problems an organization might have.

Employers have become more sophisticated in wanting to deal with the issue of harassment. For instance, women are moving towards making up 50 percent of the world’s work force and they are represented in higher levels within the organization each year. I see fewer cases of harassment, but that doesn’t necessarily mean that harassment is less prevalent. It may still exist, just in a different form.

When I first started practicing 12 years ago, I used to see lots of cases having to deal with employees returning from maternity leave and the employers terminating them. This is a form of discrimination; the employee was entitled to return to her job or a comparable job. But employers would still fail to reinstate the employee. We rarely see that nowadays. Most employers are more sophisticated than that, and they realize they have a continuing obligation to an employee when they are off on leave. I think that harassment is similar to that. Most employers are in tune with the idea that they have an obligation, and it’s in their best interests to keep their work place free of harassment.
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In those situations, it’s hard to argue that there is a proprietary interest that the organization has a right to protect. In those situations, a non-solicitation agreement would be preferable because it prevents the employee from approaching and soliciting the same clients that his previous employer was dealing with. A non-competition agreement takes the employee out of his area of expertise, saying he can’t work as a salesman. Courts are really reluctant to do this except in the most extreme situations.

A non-solicitation agreement would prevent an employee from soliciting the people on his previous employer’s client list and courts prefer that because it is a reasonable restriction. But to prevent that person from working within sales is unreasonable. From an organizational standpoint, though, in order to prevent an employee from soliciting those clients, an obligation has to be written and signed, because there isn’t any common law restriction post-termination. You need to have something written down and agreed to prior to employment or during employment.

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If the candidate refuses to sign the agreement, the employer can say, “I’m sorry, your employment is depending upon our agreement to a non-competition clause.”

In the case of a termination of employment, legally, an employee isn’t obliged to sign anything restricting their work following termination of employment. However, an employer can make a severance package dependent upon signing a non-competition agreement. Upon termination of employment, an employer has an obligation to provide an employee with the statutory notice period either under the federal legislation or under the provincial legislation in Ontario known as the Employment Standards Act. Over and above that, common law reasonable notice is dependent upon a number of factors including age, years of service, position, the character of employment, education, and inducement.

Common law reasonable notice can also be dependent upon the employee agreeing to a period of restriction during which they are prevented from working for a competitor. That doesn’t mean that the employee is not entitled to notice; it just means that the employer strategically used the termination process, as an opportunity to restrict the employees’ post-termination rights.

Does an employee have a legal obligation to sign it? No.

Would I ever advise someone to sign a non-competition agreement in exchange for receiving common law reasonable notice? Absolutely, not.

An employer cannot restrict an employee’s post-employment rights at the end of that relationship, which is why, from an employer’s point of view, it is so important to have the employee sign a non-competition agreement prior to commencement of employment.

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If you, or someone you care about, is dealing with mployment law issues in the Ottawa, Ontario Region, contact Law Office of Melynda Layton.