The employer, of course, may defend the evidence put forward to justify a prima facie case. The bar is a low one for the applicant, yet there still must be sufficient evidence to show a case on the merits.
Even is a prima facie case is established, the employer may still call evidence to rebut this and/or show an affirmative defence on the merits to demonstrate that there did exist an independent reason for the action taken, one which was not subject to any influence of the alleged violation. The more powerful and logical this evidence, the stronger the case.
Where there is an apparent case shown, then regard should be had to the evidence to show procedural and substantive accommodation. This obviously requires advance planning well prior to the hearing date, while the matter is developing.
This issue is reviewed here.
Company Policy Document
The first step for the employer is to develop an effective anti-discrimination policy and to ensure proper training be given to management and other employees. The policy should allow for an internal complaint procedure to permit an adversely treated employee to bring his or her concerns forward without the fear of reprisal.
The same policy may also include anti-harassment terms or this may be in a separate document.
It must also clearly define what rights are protected under the human rights code with as much clarity as possible. It should state the company’s commitment to human rights and to promote equality in the workplace.
It should also note its application to all employees, including volunteers and occasional workers. It should state that it offers its protections even where a person may not outwardly appear to be offended and has not vocally objected. It should also deal with the concept of a poisoned work environment and note the duty on management staff to take affirmative steps to eliminate offensive conduct.
Apart from satisfying the legal requirement to have such a policy, this may also have the impact of internalizing the complaint process and avoid third party intervention by the filing of a formal complaint. Human rights boards are not eager to see that as an objective, but the reality is that a concern which is raised internally, where the employee sees an active response and a good faith attempt to analyze and fix a problem, may likely be amicably resolved.
A good example of a case in which the court was critical of the policy created by the employer and the failure to investigate the claim diligently is a 2014 Nova Scotia case. 1 This was so, even though the court agreed that the employer had invested considerable resources into the creation of the manual. It nonetheless failed to define what conduct was discriminatory and what conduct was harassment.
The policy document should also speak to the issue of accommodation and why accommodation may be required in certain circumstances, such as issues involving disability, family status and child care or other family needs, religion or creed or age. It should state that the making of an accommodation request will not be judged adversely against the person for the initiation of the request and that all such submissions will be acted upon in good faith.
Such a policy document may be found below. The federal requirements are more vigorous. A particular draft to that end is also below as a distinct manual.
The Canada Labour Code requires every federal employer develop and implement a policy document in workplace harassment and violence. It is a comprehensive requirement and mandates an investigative process be followed. It is reviewed here.
All Canadian jurisdictions now require a policy manual dealing with harassment and violence issues in the workplace.
Prince Edward Island’s Employment Standards Act by section 27 also requires a sexual harassment policy be in place and as of July 1, 2020 implemented a mandatory workplace policy to prevent and deal with workplace harassment by S. 24 of its Occupational Health & Safety Act.
Newfoundland & Labrador did the same on January 1, 2020 as did New Brunswick on April 1. 2019.
Ontario passed amendments to its Ontario’s Occupational Health and Safety Act, which requires most employers to provide a harassment policy. This is not a human rights policy, but a harassment, well more appropriately, an anti-harassment policy.
The failure to put one in place may be itself a breach of a fundamental term required by law.
A similar provision exists under the Occupational Health and Safety Act of Saskatchewan which covers more than human rights abuse, as is the case in Ontario. The British Columbia workers compensation legislation also mandates a policy dealing with Discrimination, Bullying and Harassment in the Workplace be in place. Manitoba requires the same, as does Alberta. 2
The employer should also take steps to train its management staff on issues of human rights and also to educate all staff members of the need for human rights compliance and to be aware of the mechanics of enforcing the manual.
The reality is that such steps must be done and actually will do much to foster a positive work environment and minimize employee turn-over.
Investigate the Allegation
Once the employer is aware of a complaint, there should be an effective investigation undertaken, preferably by an impartial person, as soon as possible.
In British Columbia, an immediate and effective investigation taken by the employer, followed by appropriate remedial steps may result in the dismissal of the complaint. This promotes a speedy and fair response by the employer.
In one case, 3the complainant had alleged a representative of the company and made inappropriate comments about her sexual preference, made other alleged comments which she considered sexual and also inappropriately touched her.
The company investigated the complaint and ordered that the alleged offender be assigned into a different department to avoid direct contact. This action was found to be fair and the complaint was dismissed.