It is an implied term of all employment contracts in Ontario that employees must be treated with “dignity and respect”.
Workplace harassment can cause a breach of the employment contract because such conduct can be the antithesis of “dignity and respect”.
Thus, where there is workplace harassment amounting to a breach of the contract, it could be a constructive dismissal as per the common law. This is especially true when the workplace harassment equates to a “poisoned work environment”, which is when the workplace becomes intolerable for any reasonable person.
A constructive dismissal under the common law is when the employer breaches a fundamental term of the employment contract. Constructive dismissal gives an employee “cause” to quit his or job with full severance.
Workplace harassment can also trigger statutory human rights damages. Employees in Ontario have a right to be free from harassment because of protected grounds, including race and sex as per the Human Rights Code.
Lastly, workplace harassment can trigger fines and other penalties against the employer by way of the Occupational Health And Safety Act.
The Definition of Workplace Harassment
Many workplaces will have a workplace harassment policy in place that defines what is work workplace harassment. Nevertheless, most workplace harassment policies follow the Occupational Health and Safety Act statutory definition of workplace harassment, which states:
“workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” (source).
This definition of workplace harassment is similar to the prohibitions on workplace harassment found in Ontario’s Human Rights Code.
The Test for Workplace Harassment
Taken from the above-noted statutory definition of workplace harassment, scholars have synthesized the test for workplace harassment under the common law in Ontario as follows:
1. Is there a pattern/course of conduct- more than one incident?
2. Is the conduct/behaviour/treatment reasonably vexatious to the Complainant? (considering context)
3. Is the conduct/behaviour/treatment something that should reasonably known to be unwelcome to the one allegedly doing the action – context is important.Poisoned Work Environment (PWE) vs. Workplace Harassment: Definitions, Differences and Tests in Ontario, David Doga, 2020 CanLIIDocs 463.
In most scenarios, a complainant needs to satisfy all three factors of the above-noted test before a holding of workplace harassment is found. However, there are always some cases, which are especially egregious, in which a single incident will be found to be workplace harassment. Nevertheless, the Ontario Court of Appeal in General Motors of Canada Limited v. Johnson, 2013 ONCA 502 (CanLII), held that a successful constructive dismissal claim for a poisoned workplace (i.e. workplace harassment) needs to be repeated incidents that are serious in nature. As a result, one incident of workplace harassment would usually not be enough to be considered constructive dismissal.
Regarding the third part of the workplace harassment test, conduct constituting workplace harassment can come in many forms, including, but not limited to:
- Unwelcome or hurtful remarks about race, religion, sex, or age any other grounds of discrimination;
- Reviewing work unfairly or trivial faultfinding;
- Belittling behaviour or comments;
- Dividing tasks unfairly;
- Hindering work;
- Expecting disproportionate results, or playing favourites;
- Setting unreasonable job requirements or duties;
- Unreasonably blocking applications for training, promotion or leave;
- Doling out unfair blame, recrimination or discipline — especially in front of others;
- Unwelcome physical contact;
- Sexual harassment;
- Intimidation, bullying, belittling and unprofessional feedback; and
- Violence (source).
Concrete Examples of Harassment
Specific examples of workplace harassment include, but are not limited to:
- A colleague repeatedly makes fun of a hijab;
- A manager regularly makes inappropriate comments about physical appearance;
- An employee threatens an employee’s safety;
- A supervisor rubs an employee’s shoulders (source).
In conclusion, employers need to take workplace harassment seriously. An employer needs to be on guard to warn about, protect and remedy workplace harassment. If not, the employer runs a real risk of claims of constructive dismissal, human rights damages and fines under the Occupational Health and Safety Act.
All employers must both prevent harassment and respond to harassment if it occurs. In this regard, employers are obligated to prepare and review a policy on workplace harassment at least once a year. As well, employers must investigate all harassment complaints. After an investigation, a report of the investigation’s findings should be made. Finally, the employer must resolve the issue in whatever reasonable way possible.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.