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In the course of my work and in reading the news lately, I am seeing a lot of issues come up involving workplace health and safety. Many of those issues are related to COVID-19 — for example, some employers are deciding to let staff work remotely for the rest of the year, and some employees that are being called back to work are expressing concerns about the safety of doing so.
However, even in the midst of the pandemic, there are still non-COVID related workplace health and safety issues, and possibly the highest profile issue of that nature in Canada recently involves the allegations of workplace harassment made against the Governor General. The allegations have garnered a lot of media attention, but the unfortunate reality is that they are not that unusual. It is only because the allegations involve the Governor General that they are getting media coverage, and not because of the subject matter of the allegations. With that in mind, I thought it would be worthwhile to take a look at a couple of issues that often arise in the context of workplace harassment.
It is often not a human rights issue
Many people have the misconception that if an employee is being harassed at work, their only recourse is to bring an application under human rights legislation. However, human rights legislation will not protect an employee unless the harassment is on the basis of a “protected ground” (such as race, sex, age, family status, and a number of other grounds). As a result, an employee who is harassed by co-workers because they do not fit in with others at work, have done something that another employee took issue with, or for any number of reasons that are not among the “protected grounds” will have no protection under human rights legislation.
Similarly, if an employer or manager is harassing an employee because the employer or manager has issues with exercising their authority in an appropriate manner, is overly demanding, or treats others in a demeaning fashion, while their behaviour may be harassment, it may fall outside of the scope of human rights legislation.
For example, the news reports regarding the Governor General mention allegations of some seriously questionable behaviour, but they do not contain any indication that any of the reported behaviour was based on any ground that is protected under human rights legislation. As a result, while the Privy Council Office has indicated that the allegations will be investigated, even if the allegations are proven and are determined to amount to harassment, the Governor General’s conduct (at least the conduct that has been reported in the media) would not violate human rights legislation.
Instead, situations like the one involving the Governor General are typically addressed under occupational health and safety legislation, which requires employers to protect their employees from workplace harassment of any sort. The harassment need not be by a superior at work, or even a co-worker, and the protection provided by occupational health and safety legislation is not limited to harassment on certain listed grounds. Instead, workers are to be protected from any harassment from any source at the workplace.
Due process vs. protecting victims
It is all well and good that there is legislation that is meant to protect workers from workplace harassment, but for that legislation to be effective, an employee who is being harassed has to feel safe in coming forward with their allegations. Even though both human rights legislation and occupational health and safety legislation typically contain provisions that prohibit reprisal against people who exercise their rights under the legislation, a harassed employee is often wary about making a formal complaint for fear that they will ultimately be the one who suffers the consequences of making a complaint.
On the other hand, our system of law is based on the principle that a party who is accused of misconduct is “innocent until proven guilty,” and has the right to know the case against them so that they can respond to the allegations. The statement announcing that there would be an investigation of the allegations against the Governor General indicated that her office is subject to the Treasury Board policy on harassment prevention and resolution, and the government has issued an investigation guide for investigations conducted under that policy. The guide contains a section on procedural fairness, which includes the statement that the person accused of harassment “has the right to know the totality of the allegation(s) made by the other party and must be afforded a reasonable opportunity to respond to them.”
Some harassment policies will provide that in exceptional circumstances, the identity of the person making the allegations can be kept confidential. However, such a step should only be a last resort taken in the most extreme situations. Employers should always try to come up with a way to protect complainants from reprisal without compromising procedural fairness, so that the legitimacy of the result of the investigation, and the investigation itself, is not called into question. If an employer cannot rely on the results of the investigation in deciding how to respond to the allegations of harassment because the accused claims they did not have a fair opportunity to present their response to the allegations, that will not be of any real assistance to the employer or the complainant in addressing any harassment.
What needs to be done?
As a lawyer who has represented parties involved in dealing with allegations of workplace harassment, and who has conducted a number of investigations of workplace harassment allegations as well, I am well aware of the tension between due process and protecting complainants from reprisal. Unfortunately, I am not aware of any solution that would resolve that tension in a way that does not create its own problems. Hopefully, as more instances of harassment are brought to light and addressed in the appropriate manner by employers, including protecting complainants from reprisal and taking steps to deal with proven instances of harassment, that will have a snowball effect, and make others more confident in reporting their own experiences with harassment.
