As a lawyer who represents Employers, the discussions this week about sexual harassment in the workplace have been frustrating to listen to. The reason is that I have not heard anyone discuss the difficult legal position Employers find themselves in when one employee harasses another.
If you are not an Employer who has not been exposed to Wrongful Dismissal litigation lately, you’re likely unaware that it is almost impossible to terminate employees for “cause”. “Cause” is a fancy legal term that loosely translates into “bad behavior”.
If an Employer investigates sexual harassment allegations and terminates the harasser on the spot. That Employer will likely be on the wrong end of a law suit for damages for wrongful dismissal.
Canadian case law requires employers to warn employees before termination. Harassers must be given an opportunity to respond to the allegations against them, be offered help to overcome any issues they have and then be given an appropriate amount of time to change their behavior.
Obviously, this makes the work place uncomfortable for the victim of the harassment and that victim is a person the Ontario Occupational Health & Safety Act requires the Employer protect.
This legal “rock and a hard place” is a challenge to navigate and one of the topics that needs to be discussed: is this the Canada we want? Shouldn’t Employers be able to terminate harassers for cause if an independent investigation confirms they are harassers?
Let’s talk about it.
Inga B. Andriessen JD