in the workplace through harassment prevention, investigation
and prompt resolution.
Failure to meet these criteria can now subject employers to
claims for damages.
INDEPENDENT CAUSE OF ACTION BASED ON
“There is an independent cause of action for every act of
harm done by one person to another that leads to damages,”
said Hamilton. Based on the scenario of Mira, Hamilton says
there are several causes of action in play:
The employee is suffering from workplace harassment. If
the employee ends up resigning from employment due to the
mental health issues and other personal injuries that the employee
has suffered, the employee will have an action against the
employer from wrongful, or constructive, dismissal.
The court will consider this claim in the context of the harassment
that was taking place and can award various additional
damages due to the aggravating factors of workplace harassment.
In addition to the tort action, there will also be statutory remedies
available to the employee under the Ontario Occupational
Health and Safety Act against the employer for failing to maintain
a harassment free workplace.
The Ministry of Labour can also conduct an independent investigation
of any breaches of the Employment Standards Act,
although generally if the employee retains counsel they will
hold off on the investigation pending any resolution between
The employee would have an independent cause of action
against the supervisor, who was in a position of authority over
the employee and has intentionally caused harm to the employee.
The employee can sue the supervisor for such torts as
intentional infliction of mental suffering (being in a position
to cause someone harm, and doing so) as well as interference
with contractual relations (trying to get the employee to resign).
Generally, the employee will bring an action against the
employer and the supervisor in the same action because it involves
the same set of facts.
The judge or jury will be able to award different types of
damages arising from the various independent causes of action
against the employer and the supervisor, and hold one or both
of the parties responsible for the damages, if proven.
In addition, the employer is responsible in law for the actions
of its employee, the supervisor, while the supervisor is acting in
the course of employment.
PROTECTING AGAINST CLAIMS OF
“HARASSMENT AS A CAUSE OF ACTION”
As an employer, it is your obligation under the law to protect
your employees from harassment. But beyond that, it’s simply
the right thing to do. No one should ever be afraid to go to
work. By building a culture of respect you can prevent and mitigate
against harassment and potential liability.
How do you build a culture of respect and psychological
safety against mental injury? It doesn’t have to be a daunting
task. Bot developed a program called HEART: Harassment
Education Advisory Response Team, based on the reality that
harassment breeds where power differentials are abused. In
78 per cent of harassment cases, a senior person is the perpetrator
to someone junior. Generally the harasser is not held
accountable and the bullied employee has nowhere to turn that
provides a safe harbor for reporting and resolution.
Bot recommends organizations do the following in order to
create a respectful and psychologically safe workplace:
1. Implement the Occupational Health and Safety
Act (OHSA): Bill 132 including administering a
psychologically sound “written program;”
2. Train a peer response team to address reports of
harassment such as a HEART;
3. Educate leaders on mental health and psychological safety;
4. Train leaders and employees on how to communicate
respectfully and effectively;
5. Begin implementing the Canadian National Standard for
Psychological Health and Safety.
Employers who fail to comply with the Occupational Health
and Safety Act or other provincial legislation can be fined.
In addition, employees may seek compensation as a result of
workplace harassment by relying on the tort of harassment.
But beyond that, building a work culture of respect and safety
makes the workplace a much happier place to be. n
Donna Marshall, M.A., is the CEO of BizLife Solutions.
AND THE BULLY-BOSS
CARRY ON AND THESE
CASUALTIES OF A
DOES NOT SUPPORT
SAFETY AND MENTAL
HEALTH OF ITS
– DR. STEPHANIE BOT
HRPROFESSIONALNOW.CA ❚ AUGUST 2017 ❚ 17