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The Emerging Implied Duty of Decency

 

Let’s say one of your managers has been verbally abusive to an employee, or has just be an unpleasant you-know-what to employees, making life miserable for the employees.  Or, imagine one of your workers has been harassing other workers, or being a bully to them.  

If the basis of the harassment or bullying is one of the grounds in the Human Rights Code, then this problem has been dealt with under the Code for a while.  It appears in Section 5(2) of the Human Rights Code.  This creates a positive obligation on employers to maintain a workplace free of harassment and bullying, but it only covers the protected grounds.  So harassing someone because of their religion is covered, but not harassment on the basis of physical appearance or political belief, or harassment based on nothing at all except dislike for the person.

Until quite recently, the law did not recognize any clear duty on employers to ensure a harassment free workplace other than harassment based on the limited grounds in the HRC.  But recently, the common law judges have been imposing a general obligation on employers to do just that.   It takes two forms in the cases.

One form appeared first in a case called Shah v. Xerox,  where the Ontario Court of Appeal ruled that verbal abuse and unwarranted performance evaluations of an employee amounted to a constructive dismissal because it make the job so intolerable to the employee that he could not be expected to keep working there.  The employee was ordered to pay reasonable notice damages.

The second approach has been to imply a term into all employment contracts that requires employers to treat employees at all times with ‘decency, civility, respect, and dignity’.  This term was breached in cases where managers were verbally abusive, rude, or threatening in their dealings with employees, when they embarrassed employees, or gave evaluations of employees that courts conclude were unfair or unwarranted, or dishonest with employees.  See, for example, Saunders v. Chateau des Charmes.

In  Stamos v. Annuity Research,the implied term requiring decent treatment of employees was breached by an employer that did not put an end to harassment of an employee by a co-worker.  Therefore, this new implied term creates an obligation on employers to maintain a harassment free workplace, regardless of the basis of the harassment.  It covers the human rights grounds (religion, sex, etc.), but is broader than that.

From an HR perspective, the point is that employers now have both a human rights obligation and a contractual obligation to maintain a harassment free workplace.  And that obligation applies from the moment an employee is hired, and continues right through to the manner in which the employer dismisses an employee (as we saw in our discussion of Wallace and Honda).  An employer who fails to take proactive steps to ensure there isn’t a hostile work environment can now find itself on the receiving end of a human rights complaint and/or a wrongful dismissal complaint.  It is your job as HR professionals to guard against this.

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2 Responses to The Emerging Implied Duty of Decency

  1. P H Reply

    April 22, 2009 at 9:53 am

    This is a very interesting trend in the law – I’d add that it’s even apparent in many of the SCC’s recent cases on employment law. You mention Honda, of course. Evans v. Teamsters also emphasized the importance of the employee’s right to work with dignity in assessing whether or not they have a duty to mitigate their losses by returning to the same employer.

    One might even view this as part of a broader trend on the part of the court toward requiring a general standard of decency and fair play in all aspects of the employment relationship. In that case, you can also draw in the comments in RBC v. Merrill Lynch to the effect that employees are under a general obligation to discharge their duties in good faith. The courts may be requiring a higher standard of conduct from both parties to the employment relationship.

    Interesting review – thanks for the cases.

  2. Sue Reply

    June 15, 2013 at 2:00 pm

    Hi our workplace has not yet developed a harassment policy. However we’re noticing HR and management are presenting the law more as a management tool to control and instill fear in the employee. For example; Employees have been told they are not allowed to talk about certain topics. For example the dismissal of an employee. They keep throwing the law in our face saying legally we can’t as it’s breaching the law. They also posted this on our website: Digital Harassment “Workplace Harassment is no longer limited to within the workplace. With increasing technology there are several outlets which employers and employees need to be cautious of.These include social media such as Facebook; Twitter and youtube, blog, texting, email, instant messaging and other internet avenues. Ways to Id social media harassment: 1) Gossip about co-workers, workplace, or the company through a digital avenue. 2)posting offensive language, graphics or pictures. 3) negative comments about or directed towards the employer, coworkers, vendors or customers. 4)Participating in conversations, or postings that are inconsistent with company objective or ideals. 5) Unwanted persistent communication- even if the nature of the communication is positive but its unwanted, or unwelcome. The word in our organization is that staff are just not allowed to complain and gossip to each other. I want to know if they are allowed to do this legally. An employee posted a picture on FB, all the staff are smiling and sitting at a table in a straight line and they wrote, we look like we’re in a call centre. This is what our workplace is thinking as they drafted some of this. The employees all got in trouble and were called immature. We feel they will be writing the policy to suit their own managerial controlling needs. Their biggest focus is what they call “digital harassment” due to an innocent picture that was put on FB. I would love some legal input on this. Thanks.

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