Employees are entitled to work in civil, respectful and dignified conditions, Vancouver lawyer Cathering Repel said in a November 5 online legal seminar.
And, Repel said, if those things are absent, there are the makings of a toxic or poisoned workplace.
It’s in such workplaces that an employee may be unable to meet the terms of their employment, she said.
She provided the example of a case where a manager had snapped a female employee’s bra straps, slapped her backside, made comments about her clothing, told sexualized jokes and made fun of her accent.
“The owner and manager terminated the employee when she told him his actions were unacceptable and he had to stop,” Repel said.
The Ontario Superior Court of Justice upheld a Human Rights Tribunal of Ontario decision in the case at a cost of $30,000 to the employer.
In a 2000 Coquitlam case, a pub kitchen manager was rude and abrasive when dealing with front of house staff about food complaints, yelling at an employee when customers could hear. Repel said the front of house manager was unable to do her job and resigned as the owners sided with the kitchen manager. She claimed constructive dismissal. That successful claim cost the employer $38,300.
In human rights terms, Repel said, a workplace much be free of harassment or discrimination. The latter is outlined under B.C.’s Human Rights Code with areas of discrimination being race, colour, ancestry, place of origin, religion, sex, gender identity or expression, sexual orientation, physical or mental disability, marital or family status, age, political belief and criminal conviction not related to employment.
Such discrimination can come from a single statement from a manager or co-worker, she explained. But, a “reasonable objective bystander” must witness the event, she said.
Moreover, Repel said, “A person can experience a poisoned environment even if the person is not a member of the group that is targeted.”
Further, social media posts outside the workplace may be cause for concern if they affect employees’ workplace rights.
Such disputes might be something an employer would want to settle rather than having a company’s workplace issues aired in a public investigation.
This is not to say that employees should expect a confrontation-free work environment, Repel said, quoting the 2012 B.C. Supreme Court decision in Danielisz v. Hercules Forwarding Inc.
“It is clear that for negative behaviour towards an employee by an employer to constitute a constructive dismissal it must be such as to render continued employment beyond what an employee may reasonably be required to bear,” Justice Elizabeth Arnold-Bailey ruled. “The threshold must be high enough to permit an employer to legitimately express frustration to an employee, make very direct comments about performance or require the employee to work in a workplace with a degree of discord or conflict.”
In terms of best practices, Repel said employers should have policies on discrimination, bullying and harassment; electronic communications and privacy; procedures for complaints and investigations; and a social media policy.
She suggested all such policies be in an employee handbook and be reviewed regularly.
jhainsworth@glaciermedia.ca
@jhainswo
