In the modern employment world, the concept of a “toxic workplace” has become more than just a buzzword and is a distressing reality for many employees. Toxic work environments can breed stress, anxiety, and even physical illness, casting a dark shadow over one’s professional life and personal well-being. So, what constitutes a toxic workplace, and what rights and responsibilities do both employees and employers have in addressing and mitigating such matters?

This blog will explore how harassment in the workplace and employee allegations of a poisoned work environment can result in a human rights violation, with reference to a recent decision from the Human Rights Tribunal of Ontario (the “Tribunal”).

Employee Alleges Sexual Harassment in the Workplace

In the case of Rougoor v. Goodlife Fitness Centres Inc., the applicant commenced a claim alleging discrimination with respect to employment due to disability and sex, and in particular, sexual harassment contrary to the Human Rights Code.

Her initial application contained allegations of harassment by a co-worker in the workplace shortly after her employment commenced, and she claimed the employer failed to properly address the matter. Over six months after her employment was terminated, the applicant told the employer that she had been sexually harassed in the workplace.

The employer stated that the claimant did not raise harassment allegations during her employment. Further, the Tribunal noted that none of the applicant’s allegations regarding her making a timely complaint to the employer were not corroborated by witness testimony or other documentation. The employer also had no reason to believe that the applicant had experienced harassment in the workplace.

Workplace Harassment and Human Rights Violations

Section 10(1) of the Human Rights Code defines harassment as engaging in vexatious comments or conduct that is known or ought to be known to be unwelcome reasonably. However, it is not necessary for the person causing the harassment to know that the other person does not want to be treated this way, if a reasonable person in similar circumstances would conclude that it would be unwelcome behaviour.

In cases where an employee was harassed by another employee, section 46.3(1) of the Human Rights Code provides that the employee is not vicariously liable in most cases. However, there are certain exceptions, for instance, if the harasser was part of the directing mind of the employer where management knew, or ought to have known, about the harassment but failed to take reasonable steps to address it..

Section 5(1) and 5(2) of the Human Rights Code provides that every employee has a right to equal treatment in their workplace, without discrimination, on the basis of race, ancestry, sex, sexual orientation, and more. Section 7(2) also provides that each employee has a right to be free from harassment in the workplace because of sex, sexual orientation, gender identity, or gender expression. It is important to note that employees are to be free from harassment from their employer and other employees.

Ultimately, the person claiming that they have experienced harassment must prove that it occurred, on a balance of probabilities, supported by providing clear and compelling evidence. A finding of harassment will involve a series of comments or conduct.

A Poisoned Work Environment Can Result in Constructive Dismissal

A work environment may be poisoned as a result of a stand-alone incident, and an employer may be found liable under the Human Rights Code. Further, a finding of a poisoned work environment can result in a constructive dismissal, as the employment contract contained an implied term that the employer would provide a work environment that is not so unwelcoming that a reasonable person would conclude that the employee could no longer work there.

In order to assess whether a work environment is poisoned, it must be found that:

1. There is evidence that would lead a reasonable bystander concluding that there was a poisoned workplace; and
2. Regarding stand-alone incidents, a poisoned workplace will only be found if the conduct is so serious that it creates a hostile or intolerable work environment; otherwise, the behaviour must be persistent or repeated.

When matters come before the Human Rights Tribunal, additional factors, such as the following, will be considered:

• The amount of incidents or comments;
• The seriousness of such incidents or comments;
• The nature of the incidents or comments; and
• Whether the incidents or comments have become a condition of the claimant’s employment such that the employee is required to endure such discriminatory conduct.

Human Rights Tribunal Finds No Poisoned Work Environment

The Human Rights Tribunal noted that the employer had no legal duty to conduct a workplace investigation into such allegations when the party requesting the investigation is no longer an employee. Moreover, because the applicant had not informed the employer of the issue, the Human Rights Tribunal determined that a “poisoned work environment has not been established.” The Human Rights Tribunal also noted that the co-worker in question was a financial analyst and was not a directing mind of the employer, nor did his work duties require much, if any, interaction with the applicant personal trainer. It was also acknowledged that the employer had “detailed policies and procedures “to promote a harassment and discrimination free workplace” and they “provided guidance for reporting and investigation of any alleged harassment.”

Ultimately, the Human Rights Tribunal concluded that the “alleged harassment experienced by the applicant at the hands of the co-worker did not create a poisoned work environment as the harassing comments did not become a term of the applicant’s employment.” Accordingly, her claim was dismissed.

Contact Grosman Gale Fletcher Hopkins LLP for Trusted Legal Advice on Workplace Harassment and Human Rights Issues

If you believe that your human rights have been violated at work, or if you have experienced harassment or discrimination in the workplace, contact the experienced labour and employment lawyers at Grosman Gale Fletcher Hopkins LLP in Toronto. Whether you are an employee seeking to file a human rights claim, or an employer that is required to defend a claim, it is important to understand your rights, obligations and options. To speak with a member of our labour and employment law team, contact us by phone at 416.364.9599 or reach out to us online to schedule a confidential consultation.