Harassment Complaints: Top 5 Pieces of Advice for Employers
The recent public denunciations of sexual harassment in the entertainment industry in both Quebec and the United States triggered a visceral reaction. Actress Alyssa Milano’s call-out to use the hashtag #MeToo on social media to report instances of sexual harassment has gained incredible traction. Literally millions of people have come forward to shatter what was heretofore a wall of silence. Facebook confirmed that in less than 24 hours, 4.7 million people published messages using #MeToo and similar hashtags in other languages, generating 12 million reactions, comments and other postings1. This unprecedented social phenomenon could definitely have an impact on labour relations, since the Labour Standards Act2 (the “Act”) imposes stringent obligations on employers in connection with psychological and sexual harassment.
Here are five pieces of advice in this regard:
1. Know your legal obligations as an employer
The Act imposes a two-pronged obligation on every employer: take all reasonable means to prevent psychological harassment, and put a stop to any instance of it as soon as it comes to the employer’s attention. This obligation also applies to any instance of sexual harassment, as the latter is included in the definition of psychological harassment3.
It should also be noted that an employer must also protect its employees in any situation constituting psychological harassment brought about or created not only by an employee or a manager, but also by a person not in its employ. For example, if an employer’s client or supplier harasses an employee, the employer will have to be able to show that it fulfilled its two-fold obligation.
2. Be particularly vigilant at activities held outside the workplace
The employer’s obligation does not end when its employees leave the physical confines of the workplace. For the employer must also ensure that its employees are not subject to harassment when they attend gatherings or participate in activities outside the workplace that are organized by the employer. As the Christmas Party season approaches, a timely email or memo to employees reminding them of the behavioural standards that must be observed on such occasions can be a good way to prevent the occurrence of any untoward situation.
3. Ensure that you have an effective policy against psychological harassment in the workplace: the policy should be an efficient tool allowing the employer to fulfill its obligations, and not a straightjacket of constraining rules
Most enterprises already have a policy on psychological harassment. However, it is not just the existence of such a policy that is important, but the speed with which it is put into action once a complaint is made, as this can avoid proceedings being filed with the Commission des normes du travail, de l’équité et de la santé et sécurité au travail (the “CNESST”). It is essential that any complaint made to the employer be dealt with internally as expeditiously as possible, as the time limit for filing an official complaint with the CNESST is very short: any person wishing to file a complaint regarding psychological harassment at work must do so within 90 days following the last incidence of the offending behaviour4.
The employer must also ensure that the steps for dealing with a complaint set out in its policy can be readily achieved. For example, if the policy provides for a list of individuals who can be members of an investigation committee, that list must be kept up to date.
4. Carefully chose the person responsible for receiving psychological harassment complaints
Choosing the right person to whom psychological harassment complaints are to be made by employees is crucial. While it is generally preferable to designate someone at a senior level, every enterprise is unique, such that it may sometimes be better to designate two individuals, i.e. a man and a woman. Choosing a person lower down in the hierarchy but who is more accessible may also be preferable in order to make it easier for an employee to complain of or report a problematic situation.
5. Implement remedial measures as soon as a complaint or report of psychological harassment is received, if the situation warrants
The mere existence of a policy and the launching of an investigation will not be enough for the employer to maintain it has fulfilled its legal obligations towards an employee who complained of harassment. In most cases the employer should consider putting preventive measures in place as soon as a complaint is made internally, as the ensuing investigation can sometimes take several weeks before being completed. Such measures should be designed to ensure that the complainant can continue to perform his or her duties while the investigation is ongoing. This can be achieved, for example, by changing the assignment of the complainant or the alleged harasser so that they are no longer in contact with each other, or by insisting that the alleged harasser no longer not communicate with the complainant5.
It should be added that if the employer does not succeed in convincing the court that it took appropriate measures to prevent or put a stop to the harassment, it may be ordered to pay damages, to pay the costs of the hearing, to put in place a sensitization and training program on psychological harassment, etc.
It is essential to remember that an employer is bound to take action as soon as it becomes aware of improper conduct on the part of an employee or a third party in the workplace or at a work-related activity. It must not wait until a formal complaint is made or hide behind its policy if it suspects something untoward is occurring. Where harassment is concerned, it is better by far to be proactive.
2 CQLR, c. N-1.1
3 The Act defines psychological harassment as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological integrity and that results in a harmful work environment for the employee”.
4 Section 123.7 of the Act
5 See in particular Syndicat de la fonction publique du Québec – unité ouvriers v. Québec (gouvernement du) (Ministère des transports), D.T.E. 2012T-50 (T.A.) (Claudette Ross, arbitrator).