Failing to address an employee’s repeated complaints of abusive and harassing behaviour at the hands of a co-worker has cost an employer over $200,000 in penalties levied by an Ontario Superior Court judge. “We can’t ignore inappropriate behaviours,” says WSPS Strategic Advisor Andrew Harkness. “Financially and emotionally it’s too costly for everyone involved — employers, employees, even their families.”
Employers have a responsibility under Section 32.0.7 of the Occupational Health and Safety Act
to investigate incidents and complaints of workplace harassment. Andrew suggests below a 5 step process for employers to follow. But first, the incident and the aftermath that triggered the penalties.
On April 17, 2018, a 19-year veteran with the employer wrote to the president about “being constantly harassed by [the co-worker] yelling and screaming at me, telling me that I am an idiot and that I should be fired.” She added, “I have never ever filed a complaint but I want you to step in and make sure this never happens again.” The president said he would discuss it with the company’s HR person.
The employee followed up on May 7 and 8. The president replied that he had taken it up with the HR person and would take further steps. On June 21, the employee alleged that the co-worker slapped her across the face three times. This time she complained to the company’s managing director and a police report was filed. Her employment was terminated that same day without notice or compensation for the loss of benefits. On August 24, the employee began legal action against the company and the co-worker.
The employee later reached a settlement with the co-worker, but the employer never filed a statement of defence. A Superior Court judge eventually awarded the employee $204,433, as follows:
- $129,433 for 19 months of salary in lieu of notice plus 10% of her salary for employment benefits over this period
- $15,000 in damages for assault and battery on the basis of the employer’s vicarious liability
- $50,000 in aggravated damages
- $10,000 in legal costs
5 steps to avoid this in your workplace
Andrew Harkness encourages employers to avoid the emotional and financial costs of a situation like this by
- developing a workplace policy addressing workplace harassment, including sexual harassment.
- developing and maintaining a workplace program that addresses violence and harassment, including sexual harassment. “It’s essential to have a program that supports that policy, including a process for employees to report inappropriate behaviour and ensure that investigations are conducted,” says Andrew. “Set up an alternative reporting process when the aggressor is the designated reporting source.”
- assessing the risks of workplace violence based on the nature of the workplace and type of work and implementing measures and procedures to control the risks.
- training all employees on the program so they know what their responsibilities are and how they can protect themselves and co-workers.
- ensuring you have a competent person to conduct an investigation. “This doesn’t necessarily mean that the investigation should be conducted internally,” says Andrew. “Depending on the circumstances, it may be more prudent to bring in an impartial party to conduct the investigation.”
How we can help
In an upcoming issue: more violence and harassment prevention resources, plus this article: “You Have Received a Sexual Harassment Complaint, Now What?