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.