Workplace Harassment: Key Considerations

Things did not go well last month for a certain member of the RCMP. Officer Merrifield alleged that his bosses on the force harassed him as payback because he ran (unsuccessfully) for a political party. He said, among other things, that he was transferred around and investigated for alleged petty offences. He sued for workplace harassment and was awarded $100,000. Not bad. But last month the Court of Appeal tossed his claim, saying that Ontario does not recognize a lawsuit based solely on harassment.

I handle calls every month where an employee alleges harassment at work. Some of it is very serious and worth a battle. But often, when you probe a little, what appears as harassment is really a personality conflict or a really bad fit of employee with his or her job. Or there really is another side to the story. Let me give you a recent example, right out of Brampton. Michelle Lancia was a dental hygienist. She quit her job and sued her dentist after 19 years of employment on the basis of “constructive dismissal” and alleged sexual harassment. The lawsuit was tossed out by a judge who carefully noted some things which did not help her. For starters, her lengthy resignation letter did not mention sexual harassment. For another, she gave as good as she got when it came to sexual banter and risqué conduct. For another, her friendly text messages with the dentist were inconsistent with someone who was being victimized by that person. So, she struck out and her claim was tossed.

The uptake:

• The courts just do not want to referee ordinary workplace disputes. They really don’t want to get into that game.
• If the harassment is completely over the top, if it has poisoned the workplace entirely, you may take a chance and do what Ms Lancia, quit and turn around and sue for “constructive dismissal”. If the harassment was tinged by sexism, ageism, or racism, you can take a claim for discrimination on top of your lawsuit. Of course, if the judge finds that the conduct was not all the bad or that you condoned it, you are both out of a job and out of a damages award.
• If suing for constructive dismissal is not an option, press your employer for effective workplace policies against harassment. If your workplace does not have such policies or refuses to investigate and discipline, the OHSA * provides for large fines (but no compensation for you).

* Occupational Health and Safety Act