Recently, the governor-general of Canada, Julie Payette, resigned. The resignation was the result of a workplace review in which there were allegations of misconduct. These allegations concerned claims by employees that the former governor-general had presided over a toxic workplace, which included verbal abuse, aggressive conduct, and public humiliation. Now there is talk that the employees, who worked under the former governor-general, might be looking at taking legal action against the federal government, their employer. So, the question here is, what kind of responsibility does a federal employer have to provide a workplace free of a toxic environment? It turns out, that is a question the federal government considered as well, and it has now released a directive on the prevention and resolution of workplace harassment and violence.

Federal Directive on the Prevention and Resolution of Workplace Harassment and Violence

A few weeks ago, we wrote about the new Federal Workplace Harassment and Violence Prevent Rules. These new requirements outlined how federal employers must manage claims of workplace harassment and violence. Those rules went into effect on January 1, 2021. Related to these new rules is the new federal government directive that also came into effect on January 1, 2021. This directive mandates that organizations of core federal public administration respond appropriately and without delay to a notice of an occurrence of harassment or violence, in compliance with the Canada Labour Code, Part II, and the new Workplace Harassment and Violence Prevention Regulations (WPHVPR).

The directive is expected to have the following results:

• Employers will establish preventive measures that will be nurtured through an ongoing multidisciplinary approach;
• Workplace harassment and violence occurrences will be addressed promptly with sensitivity, fairness, and an emphasis on informal early resolution, as appropriate; and
• Individuals employed by the employer will increase their confidence in how workplace harassment and violence incidents are prevented and resolved.

Further Requirements of the New Federal Directive

The new directive does not just require that federal employers comply with the WPHVPR regulations. The directive also mandates that senior officials designated by the deputy head have accountability for ensuring these regulations are implemented and carried out. They are responsible for overseeing:

• Prevention and protection measures;
• Support measures;
• A resolution process; and
• Reporting.

Basically, senior officials are tasked with making sure that complaints of a toxic workplace are properly addressed and resolved.

Under the heading “resolution process”, for instance, there are several requirements that the senior officials ensure that the well-being of the workplace is restored after discovering or becoming aware of problems in the workplace.  Those requirements include that:

• Senior officials have to implement recommendations from the investigator’s report, as determined jointly with the applicable partner (health and safety committee, policy committee or the workplace health and safety committee);
• Senior officials have to conduct a joint workplace assessment with the applicable partner (as per section 5(1) of the WPHVP Regulations), and address the risk factors that led to the occurrence of workplace harassment or violence;
• Senior officials must address any detrimental impacts that result from occurrences of harassment and violence, including reprisals;
• Where there is potential misconduct, senior officials should refer the issue to a labour relations specialist to address the potential misconduct through a separate administrative process; and
• Senior officials must ensure that allegations of offences under the Criminal Code of Canada are reported to the departmental security officer and deputy head, and to the relevant law enforcement organizations, where appropriate.

What Kind of Claim Do the Employees Have Against the Government?

These new rules and directives aim to prevent a toxic work environment. The implementation of these new rules will hopefully prevent incidents such as the one those who worked directly with Julie Payette have complained about. However, those employees who participated in the work review could also bring actions against the federal government.

Regarding employees who left their employment during Payette’s term as governor-general, they would most likely bring actions for constructive dismissal. Under the Ontario Employment Standard Act, constructive dismissal happens when the employer changes a fundamental condition or term of an employee’s employment, with the employee’s consent. The employee’s consent can be actual or implied.

For employees who continued to be employed while Payette was governor-general, and those that resigned as well, they could claim negligence on the part of the federal employer. Here, the employees would have to prove that the employer breached the duty of care to them by knowing this conduct was occurring, but doing nothing to mitigate the situation.

Employers have to be aware of and accountable for the kind of behaviours that are occurring, and being tolerated, in the workplace. As can be seen, rules and regulations regarding the workplace environment are getting stricter. It would be prudent for an employer to consult a lawyer as to their responsibilities regarding the workplace environment.

For advice on employer liability and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.