Canadian Law of Work Forum (CLWF)
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
Canadian Law of Work Forum (CLWF)
Law of Work Archive

The Emerging Implied Duty of Decency

by David Doorey April 20, 2009
written by David Doorey April 20, 2009

 
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.

2 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

previous post
Damages for bad faith in dismissal: an update
next post
The 'freedom of association' transformation?

You may also like

A Cross Country Update on the Card-Check versus...

October 3, 2018

A Successful Strike Vote is All That Stands...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Putin Invites Trump to Moscow for Second Meeting...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 219 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

CLWFFollow

CLWF
Retweet on TwitterCLWF Retweeted
RSandillRicha Sandill@RSandill·
24 Feb

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211853Twitter 1364627677785821185
Retweet on TwitterCLWF Retweeted
TheLawofWorkDavid J. Doorey@TheLawofWork·
24 Feb

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.