Employment & Labour

Toxic workplaces a ‘lose-lose’ proposition for employers

By AdvocateDaily.com Staff

Employers have economic and legal incentives to prevent toxic workplaces, says Toronto employment lawyer Soma Ray-Ellis.

Ray-Ellis, partner and chair of the employment and labour law group with Gardiner Roberts LLP, tells AdvocateDaily.com that a variety of legislative changes in the last decade have transformed corporate responsibility when it comes to harassment and bullying.

Starting in 2010, Bill 168 introduced requirements under Ontario’s Occupational Health and Safety Act (OHSA) for risk assessments and policies regarding workplace violence and harassment.

More recently, Bill 132 mandated employers to conduct investigations into incidents of alleged workplace harassment, while explicitly expanding the definition to include sexual harassment. It also provided provincial inspectors with the power to order an impartial investigation at the employer’s expense.

Meanwhile, the OHSA allows for steep fines to be imposed on businesses and individuals found to be in non-compliance, but Ray-Ellis says senior management should be motivated by more than scare tactics to tackle problematic behaviour in the workplace.

“Apart from regulatory reasons and it being the right thing to do, when people are harassed or bullied, neither the harasser nor the victim is working to their full potential, and other employees will be affected by demoralization,” she says. “It’s a lose-lose proposition economically for employers.”

According to Ray-Ellis, employers typically become aware of problems in their workplace either via complaints or survey responses from employees or third parties.

However, when an issue comes to their notice, Ray-Ellis warns that it may trigger a duty to investigate.

“Sometimes an investigation will reveal evidence of criminal harassment or violence, and the police may need to be involved,” she says. “Other complaints may relate to the Human Rights Code, and employers need to make sure they’re following all the necessary regulatory requirements.”

Depending on an investigator’s findings, organizations may need to take disciplinary measures against specific employees or implement training and education programming to address specific issues, Ray-Ellis says.

In less serious cases, she says informal proceedings, such as a reconciliation meeting, may suffice.

“Education is key in many of these situations,” Ray-Ellis says. “Instigators of the harassment don’t always understand the impact their behaviour is having on other people.

“Reconciliation or education meetings can help them come to terms with that, but if they’re not prepared to gain a deeper understanding or change their behaviour, then the possibility of discipline or termination may have to be explored,” she adds.

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