The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
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 Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

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

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

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

October 3, 2018

The Folly of Not Voting to Strike in...

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

Follow Us On Social Media

Twitter

Latest Tweets

TheLawofWork Follow

@ ·
now

Reply on Twitter Retweet on Twitter Like on Twitter Twitter
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • Constructive Dismissal
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gender
  • 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
  • New Zealand
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • 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.