Poisoned Work Environment – The Failure to Prevent Harassment

The employer takes on direct liability, given a finding of a poisoned workplace. This includes Ontario.

A poisoned work environment is one which essentially is allowed by the employer to evolve by taking no affirmative steps to ensure the workplace is compliant with the code obligations. There generally is no specific statutory provision which states words to this effect.¹

An employer may be liable for such an offence by failing to prevent harassment or respond to it. ² This is discussed in detail momentarily on the specific issue as to whether the failure to investigate is independently actionable. The law is not quite as certain on this subject as this statement suggests.

A poisoned work environment will arise when management is aware or should be aware or an adverse workplace but allows this condition to be tolerated. Management itself need not be active participants in the wrongdoing. Allowing it to exist is enough.³

A similar finding was made in Farris v McKeague and Leonard. (Martin) ⁴ The employer had allowed a climate of antipathy of Ms. Farris, based on an incorrect rumour that she was having an affair with a co-worker, Leonard. Peers referred to her in very unflattering and insulting terms. These findings and the rumour of the affair constituted a poisoned work environment as found by the Tribunal. Mr. McKeague had disciplined the staff person who started the rumour and the staff was further cautioned to desist in such conduct. At a final meeting to discuss this issue, Ms. Farris was blamed for her conduct. It was determined action had to be taken to resolve the apparent work environment, which resulted in the termination of Ms.Farris. The Tribunal found that the employer had not taken sufficient remedial action to correct the circumstance and that the termination was also a reprisal.

The factors to be considered include a consideration of all the relevant circumstances, including the seriousness of the conduct, their significance, their effect on the workplace, the role of the person making them, the effect on the applicant, and the reaction of the respondent to any concerns raised.

Even though the company may respond properly to a complaint, it still has an obligation to ensure that it takes affirmative steps to ensure a proper work environment. The failure to do so may lead to the creation of this poisoned work environment.

The same finding was reached when the employer failed to allow a work environment which was free from discrimination due to the complainant’s sexual orientation. It concluded that negative and discriminatory attitudes towards gays and lesbians were permitted by the employer to exist. The complaint was not addressed by management, which contrasted to the serious investigation it did conduct with respect to complaints against the applicant. It also found that the employer did not have in place a proper process or training program to educate and fight against discrimination against gays and lesbians ⁵.

The employer has an affirmative duty to take the initiative to cause workplace to be human rights compliant. It cannot offer as its defence that the complainant was a participant, for example, in the same offensive language. ⁶

On this submission, the tribunal must look to the question of whether it was the accepted environment which caused this behaviour ⁷. It remains the overall objective and mandate of the employer to cause the cessation of workplace vexatious comments or conduct⁸.

In one case ⁹, the employer had failed to investigate and accommodate an employee undergoing gender transition and insisted on treating the applicant as a man, when this did not reflect her sex and gender identity. This, in turn, exposed the applicant to workplace harassment and loss of dignity. It had reason to take the initiative to investigate and take remedial action, which it failed to do and also terminated her employment.

The Ontario Court of Appeal spoke to this issue in the context of a civil action in which the plaintiff was a member of management who had allegedly allowed a toxic work place to exist. The Court of Appeal imposed a higher standard upon management to ensure that the workplace was free of inappropriate conduct. ^{10 11}

This issue also may raise the personal liability of management staff to such a claim.

Remedy

The remedy for a finding of a poisoned work environment may include not only a compensatory sum for injured feelings but also a claim for lost income where the employee has asserted such working terms and conditions were abusive to the extent that he or she could not continue in with the employment relationship.

Impact on Termination

Where there has been a finding of a poisoned work environment followed by a termination of the complainant, the tribunal must look at all surrounding circumstances to determine if the protected human rights ground was a factor ¹² in the termination ¹³. ¹⁴

Damage Awards

In the Smith case referenced above, an independent award was made for the poisoned work environment of $25,000.¹⁵

An award was made of $22,000 ¹⁶ plus eight months’ lost wages in a case dealing with multiple code violations, one of which was a poisoned work environment. Others included the termination of employment, which was directly stated as due to gender.