Have you ever had an employee file a claim against your organization? Employees are entitled to work in a respectful environment which is free from harassment, bullying and discrimination. When are interpersonal tensions and conflict between colleagues “normal”? When do they rise to the level of “toxic” and trigger a right to legal recourse and remedies?
Small business owners may not realize when a situation has gone beyond unhappy employees and the work environment may come under scrutiny. A toxic workplace may be found if the atmosphere has become untenable for employees due to harassment, bullying, or discrimination. This often results from repeated mistreatment; however, it may also be the consequence of a single serious incident of improper conduct.
Under occupational health and safety legislation, workplace harassment has been defined as “engaging in a course of vexatious comments or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome or workplace sexual harassment.” Captured by this definition are unwelcome comments that are offensive, embarrassing, humiliating, and demeaning, as well as intimidating or discriminatory.
The legislation requires employers to conduct investigations into incidents and complaints of workplace harassment and to subsequently inform the complainant and alleged harasser of the results of such an investigation.
Note that, because employees do not recover damages where an employer is found to have violated occupational health and safety legislation, it is far more common for employees to seek remedies under human rights applications or through constructive dismissal, as discussed below.
Under human rights legislation, a toxic work environment is one where unlawful discrimination, bullying, or harassment based on a prohibited ground – e.g. sex, race, disability, or sexual orientation – becomes part of the employee’s experience at work. There must be no harassment or discrimination in the workplace relating to any human rights protected by law.
An employee who is experiencing harassment or discrimination contrary to the Ontario Human Rights Code (OHRC) may be working in a toxic or “poisoned” environment.
An employee may claim constructive dismissal when an employer substantially changes a fundamental or essential term of his or her employment contract (without agreement) and essentially leaves the employee with no choice but to leave his or her employment. An employee may claim the workplace atmosphere had become so poisonous that quitting or resigning was the only option and is now owed damages for dismissal.
Usually, a constructive dismissal will not follow a single, standalone incident. It could, however, if the incident is particularly egregious. However, generally speaking, a constructive dismissal will require serious wrongful behavior that is persistent or repeated.
Avoid claims from employees by having in place a robust, well-considered respectful workplace policy which prohibits unlawful harassment, bullying and discrimination and clearly sets out the procedure for making and investigating complaints. In addition, ensure that employees are aware of and trained on the policy, and carry out refresher training on a regular basis.
If an employee claims their workplace is toxic, take it seriously. Such a claim can lead to costly litigation and significant damages. Investigate the complaint and clearly and accurately document the process or, if necessary, engage an independent, qualified investigator for that purpose. If the workplace benefits associated with implementing respectful practices isn’t motivation enough, being able to demonstrate that steps were taken to protect your employees will enable you to respond more meaningfully if there is a complaint.
You can resolve HR issues with speed and certainty with support. Get the small business HR advisory help you need to navigate employment and labour laws without needing to hire an in-house expert. Learn more about HR Advisory Powered by e2r Solutions.
Christina Iannozzi (BA, JD, LLM) is an employment lawyer and workplace investigator as well as an Advisor with e2r®️, which powers Ceridian’s HR Advisory Services. Follow @e2rSolutions on LinkedIn, Twitter, and Instagram to stay up to date on Christina and the e2r®️ team!View Collection