Sharp Workplaces Rose Keith KC Partner, Harper Grey LLP January 29, 2024 Sharp Workplaces Training Practical Considerations in Employment and Civil Law Remedies for Workplace Sexual Harassment What will we do today? Review basic legal
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Presentation Transcript
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Sharp Workplaces Rose Keith KC
Partner, Harper Grey LLP
January 29, 2024<br>
02
Sharp Workplaces Training Practical Considerations in Employment and Civil Law Remedies for Workplace Sexual Harassment<br>
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What will we do today? Review basic legal principles of employment law and sexual harassment
Review the types of remedies potentially available to victims of sexual harassment
Group work with fact patterns with groups formulating remedies
Review of the group solutions<br>
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Employment Law Basics Contract of employment
Implied terms
Reasonable notice
Safe and harassment free work environment
No change of fundamental terms without notice
Compliance with minimum standards legislation
Compliance with occupational health and safety legislation<br>
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Termination of Employment Quit
Fired
For cause
Without cause
Constructive dismissal
Fundamental change to a substantial term or condition of employment<br>
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Reasonable Notice of Termination Contractual terms
Enforceable?
ESA compliance
Consideration
Signed prior to commencement of employment<br>
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Common Law Notice Age
Length of employment
Nature of employment
Any other factors that may affect re employment
Rough rule of thumb
Short term employees<br>
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Implied duty of good faith and fair dealing What does that mean and why is it important?
Requires employer to be honest and forthright with employees when they are terminated
Duty to perform contract honestly and in good faith
Non contractual damages
Not for the usual hurt feelings that result from the termination itself
Damages that flow from breach
Moral damages – punitive damages/aggravated damages
Punitive – to punish
Aggravated - compensatory<br>
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Constructive Dismissal Employer changes terms or conditions of employment
Implied duty to provide safe and harassment free work environment
Remedy is same as without cause termination
Remember duty of good faith<br>
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Occupational Health and Safety WorkSafe BC
Bullying and Harassment policy
Prohibited action
Workplace injury<br>
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Sexual Harassment in the Workplace Unwelcome conduct of a sexual nature
Detrimentally affects the work environment or leads to adverse job related consequences
Intention doesn’t matter, impact does<br>
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Examples of Sexual Harassment Comments about a person’s body, gender identity, sexuality or sex life
Sexual propositions
Sexist jokes and language
Demanding dates or sexual favours
Display of sexual images where others can see it
Actual and/or threatened physical contact
Demeaning and sexually explicit bragging
Sexually aggressive gestures
Sending someone unwanted sexual images, text messages or emails
Using sexist, transphobic or homophobic language or any other behaviour that targets someone’s gender or sexuality
Spreading rumours or gossiping about someone’s sexuality
Requiring employees to dress in a sexualized way
Stalking, following and/or watching another person<br>
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What is not Sexual Harassment Legitimate and proper exercise of management authority and/or responsibilities in the workplace
Legitimate and constructive feedback about job performance
Disciplining staff in accordance with the duty to manage
The employer’s right to assign tasks
Good natured consensual flirting, teasing or jesting that both parties are comfortable with and find acceptable and does not make one of the parties uncomfortable
Office relationships that both parties are comfortable with and both parties consent
Consent in a situation of power dynamic<br>
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Third Party Sexual Harassment Harassment committed by a third party that is not an employee – customer, vendor, client, employee of another company<br>
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“In Employment” Concept of “in employment” considered broadly and includes application and interview stage, volunteer work, internships, off site work related obligations, and any conduct that has work related consequences, such as a co-worker or manager using social media to target<br>
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Dianna Waitress in a Greek restaurant
Tommy the cook sexually harassing her
When harassment stops, Tommy makes her life miserable
Phillip the owner doesn’t help
Eventually Diana quits<br>
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Dianna’s Remedies Human Rights – sexual harassment is discrimination
Constructive dismissal – failure to provide a safe and harassment free work environment
Reasonable notice
Breach of duty of good faith – moral damages
WorkSafe complaint – injury in the workplace
Prohibited action – adverse consequence of reporting of harassment<br>
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Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252<br>
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Jennifer Work in a male dominated factory
Repeated sexist comments
Safety concerns raised at production meeting
Complaint of sexual harassment
Cursory investigation
Termination<br>
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Jennifer’s Remedies Human rights complaint
Termination as a result of raising complaint of sexual harassment
Damages
Reasonable notice contractual damages
Moral damages for breach of duty of good faith
WorkSafe
Workplace injury
Prohibited action<br>
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Doyle v. Zochem Inc. 2017 ONCA 130<br>
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Questions? Rose Keith KC - Partner
604-895-2911
rkeith@harpergrey.com<br>
