12/12/2019 by John Tamming 0 Comments
Harassed at Work? Your Options & Determining If You Have a Claim
I receive more calls and emails about workplace harassment topics than anything else. And that makes sense – many of us spend more time with our manager and co-workers than we do with our spouses. When work goes south, we go south.
My boss called me fat. I’ve been cut out of important meetings. I’ve been told that I am stupid and that I should have been fired years ago. When I took time off to care for my child, I was given the cold shoulder on my return. My boss asked if I was wearing that dress for him.
There are a million ways to render a workplace toxic. Unfortunately, there are fewer legal remedies than you might think.
The courts and tribunals cannot and will not act as playground supervisors for thousands of workplaces in the province. They will only step in when things cross certain lines.
The first question to ask yourself is this: Am I in fact the victim of harassment or is it a personality conflict more than anything else? If the latter, rather than go legal you may wish to speak to your manager (or another manager) about a transfer. You may also want to think about getting another job if you and your manager or co-workers are not a good fit. For example, if your manager is a humourless stickler for detail and not that flexible with altering work hours, that is not a lawsuit but it may be a very good reason to look elsewhere for employment.
Complain to the Human Rights Tribunal: If it is in fact harassment, are you being singled out because of your race, gender, family status, sexual orientation or disability? If you have solid evidence of such discrimination, you may take a run the employer at the Ontario Human Rights Tribunal. That will likely take several years. If successful, the awards are usually modest, though the tribunal can and will also force the employer to take actions to avoid future acts of discrimination. Some clients are happy with the battle, most I find are dissatisfied both with the result and the time it takes to get there. Our firm will only act in the most serious cases before the tribunal; it can be managed without lawyers.
Complain to the Ontario Ministry of Labour: If you are the victim, for instance, of persistent bullying, you may wish to go to the Ministry of Labour with a complaint. You will not receive any compensation but the employer may be ordered to take certain steps to reduce the risk of it happening again to yourself or others. The employer can also be fined. You may get some satisfaction out of this but, again, it will take time and there is no compensation. I know of few clients who find this route to be rewarding. Again, it can be done without lawyers. If the bullying or harassment is grounded in discrimination, you can couple this complaint with a human rights complaint and obtain compensation that way.
Sue for Constructive dismissal? It is possible for things to be so bad, so toxic, that you may consider the employment to be terminated in essence, though you have in fact not been fired. A prime example is repeated sexual harassment. No judge would expect an employee to continue working in those conditions. If, after careful discussion with a lawyer, you take this route, the employer will be on the hook for termination pay and for extra damages (something called “moral damages” and damages for discrimination). We have succeeded in many such claims over the years. But before you roll the dice, you need to know that it is in fact a gamble in all but the clearest instances. If you quit, sue for constructive dismissal and a court finds, as they have in many cases, that you gave as much as you got or that the acts don’t amount to toxic conduct or that the employer acted reasonably by offering you a different workspace with different coworkers, you will receive no compensation. And you will still be out of a job.
Sue for the intentional infliction of mental distress: This is a tough one to prove. You need to show, for instance, that your manager engaged in outrageous conduct, that such has caused a provable mental or physical illness and that the manager expressly intended to cause you such harm. On the right facts, this claim will succeed and, best yet, you don’t need to quit your job and sue for constructive dismissal (although, practically, it is not easy to work for an employer you have sued).
THE BOTTOM LINE: Here is what I strongly urge for prospective clients:
First be ruthlessly honest with yourself. Accept that a judge or tribunal may not see things as you experience them. For example, is the toxic situation in part of your own doing?
Second, write down two or three of the absolute worst and most outrageous things that the employer did to render the workplace toxic; if you cannot compile such a list, you likely don’t have a claim.
Third, ask yourself what you want. Do you want to keep your job? Continue with the same employer? Obtain compensation? Just make sure the manager learns a lesson? Knowing your end game is critical.
If you think you may have a possible claim, please email me some details and let’s talk. If I take your case, other than a very modest payment for some up front expenses, we will charge no fee whatsoever until and unless we collect compensation.