Workplace Harassment: Six Things You Can Do To Address It

The #MeToo movement has sparked conversations on and off social media about gender equality, violence against women, consent and bullying. Power imbalance has existed since the dawn of time. But as our societies become more modern and complex, the issues of power and inequality are far from being resolved. It seems that power is being exercised unfairly in every possible setting: in romantic relationships, in social functions, but also in the workplace. This begs the questions: what can employees do to address and prevent harassment in the office? Before this question can be answered, it is necessary to understand what actually constitutes harassment.

What is harassment?

Ontario legislation defines workplace harassment as vexatious comments or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This includes offensive, embarrassing, humiliating and demeaning words or actions against a worker or a group of workers. Common examples of harassment are:

• making remarks, jokes or innuendoes that are meant to ridicule or intimidate;
• circulating digital or hard copies of inappropriate material; or
• calling someone or sending e-mails excessively.

Some behaviours, while frowned upon by some, do not necessarily fall under the definition of harassment. For instance, reprimand by a manager towards employees, heated discussions and debates or conveying indifference about someone or something would typically not be viewed as harassment. Most occurrences of harassment involve repetition of wrongful actions over some time. However, it is possible that a single event rise up to the status of harassment, especially if it quite egregious and damaging to the person targeted by the wrongful conduct. There is a fine line between being harassed and just being overly sensitive. When in doubt, get some legal advice to know whether or not your issues at work need to be addressed in a more formal manner.

What Can Employees Do To Address Workplace Harassment?

1. Learn and Follow Internal Workplace Policies

Employers have a duty to create and implement workplace harassment policies, and to review them annually. Employers must also have procedures in place allowing employees to place complaints and report incidents about harassment instances without fear of reprisal.

As an employee, it is important to take the time to review these policies and abide by them. If you have experienced harassment, do not wait for things to get better on their own – you should address the problem right away. Go talk to your direct supervisor and any human resource person about the incident in question. If you are a unionized employee, discuss with your union representative as soon as possible.

2. Keep Records of the Incident

Take notes of the words that were said to you or the behaviour geared towards you. If there were other individuals present during the harassment, write their names down. Make sure you keep track of the location and time where the incident took place and whether it actually occurred at work. If disturbing material was sent to you, make sure you keep a copy to support your allegations. These records will be of vital importance to discuss and support your allegations of harassment.

3. Attend Any Programs Available To You

Most workplaces will have certain programs to help employees who have been harassed. Find out whether there is a possibility for you to receive any assistance in a confidential manner. Do not be shy to be accommodated. For instance, it can be beneficial for a worker who experiences harassment by a manager to work in another department or at different hours if possible.

4. Call the Police

In some cases, instances of harassment amount to criminal behaviour. This can be the case where the unwelcomed behaviour comes from a person in a position of power. Generally, it is crucial to have the police involved in cases of bodily harm, unwelcomed touching and stalking. If a criminal investigation ensues, make sure the person being investigated is not allowed to contact you directly or indirectly.

5. Place a Complaint Before the Human Rights Tribunal

The Ontario Human Rights’ Tribunal deals with complaints based on discrimination and harassment. If internal remedies have been unsuccessful, employees may try to resolve their issues by having their dispute handled by an administrative tribunal.

The process involves making a written complaint, reviewing a response, attending a mediation session and finally having the matter heard before an impartial decision maker. Employees who believe they are being subject to harassment should not delay in bringing their claim forward. The Tribunal may refuse to hear matters where the events occurred over a year before the claim was brought before it.

6. Be Willing to Walk Away

As difficult as it is to say, not all matters can be resolved amicably. While employees can certainly take measures to prevent and address harassment, unfortunately, there are times where the harasser refuses to stop engaging in vexatious conduct. If an employee has exhausted all his or her avenues and is still being harassed, sometimes, the best thing to do is to walk away from the situation altogether and seek employment elsewhere. In that case, it can be helpful for the employee to obtain legal advice to negotiate a fair severance package prior to his or her departure.

Karen Kernisant is a lawyer at Aubry Campbell MacLean and practices in the areas of Employment and Family Law as well as Civil Litigation.

Top 4 Things NOT To Do If You Need to Dismiss an Employee

Small and larger business owners need to make difficult decisions everyday: acquire new clients, build relationships with interested stakeholders, pay invoices, redefine their brand and ensure staff are completing all assigned tasks. Given that an employer-employee relationship evolves over time, managers sometimes must make the difficult decision of terminating a person’s employment. There is no perfect way to dismiss an employee but there are some things managers should simply not do when letting an employee go.

Mislead Employees About their Rights

The Ontario Employment Standards Act, 2000, S.O. 2000, c. 41, is meant to protect both employers and employees alike. While management can certainly put an end to the employer-employee relationship, it has a duty to remain honest to the employee. Employers should never misinform employees about the amount of money they are entitled to under the Act.

An employee is entitled to notice of termination if he or she has been continuously employed for at least three months. Rather than giving an employee notice, employers can also pay termination pay. The amount of notice to give to an employee depends on the period of employment of that person. More information on the required notice can be found here

If an employee has specific questions about their rights and amount of notice they are entitled to, it is good practice for employers to encourage employees to seek independent legal advice on the matter.

Force the Employee to Sign a Release the Day of Termination

Whether employees choose to exercise their right to get legal advice, employers should always make sure employees have had reasonable time to review their termination package. Particularly because managers are in a position of power, in order for any signed release to remain binding and enforceable, it is beneficial not to rush the process of termination. There will always be time to sign a release at a later date. Releases signed under pressure may be set aside in certain circumstances by courts.

Prevent an Employee From Retrieving Personal Belongings

When an employee finds out they have just been fired, they generally feel very vulnerable. Expect them to be emotional, argumentative and sometimes even irrational. Whatever you do, do not add fuel to the fire. Keep the meeting short and brief. Know exactly what you are going to say, invite only those who need to be present and always make sure you have done the necessary steps to protect sensitive information.

This may entail coordinating with your IT department to disconnect any digital access the employee has to certain databases, store files away and changing certain codes or passwords. While it is important to make sure that any client or third-party file be kept safe, it is bad practice to give the employee the walk of shame by having a security guard escort them out of the building in front of other employees. The employee is already hurting from the employer’s decision, let them keep their dignity. Allow them to retrieve their personal belongings after work hours when most staff have left them office.

It is however reasonable to ask for them to return any keys, cards or parking pass to reduce access to the building. If the employee was provided with a business credit card, make the necessary arrangements to have the card returned and contact your financial institution right away to inform them the employee in question no longer has authorization to make any transactions on the business’ behalf.

Discuss the Termination With Others

Many people in businesses, especially larger ones, enjoy gossiping – that includes those in management positions too! As tempting as it is to discuss an employee’s termination with others, resist the urge. As an employer, if you decide to dismiss an employee, it is safer to send a brief general e-mail letting others know that the terminated employee will no longer be with your business. Leave any other details out. If employees ask questions, respectfully decline to comment. Also avoid discussing these matters outside the workplace. It generally makes the employer look worse than the employee. In the worst of scenarios, this may entice a disgruntled employee to commence a lawsuit for defamation against you.

Karen Kernisant is a lawyer at Aubry Campbell MacLean and practices Employment and Family Law as well as Civil Litigation.