Workplace harassment and discrimination prevention: policies and training in manufacturing

In Ontario, manufacturing industry employers have specific responsibilities regarding workplace harassment and discrimination prevention, as outlined in the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (Code).

The OHSA primarily focuses on ensuring workplace health and safety and includes specific provisions related to workplace harassment. Employers must:

• Create a workplace harassment policy. In manufacturing settings with over five workers, the policy must be in writing and posted where workers can see it.
• Protect workers from harassment by investigating complaints and informing both parties of results and corrective actions.
• Establish and maintain a workplace harassment program that covers reporting, investigation, and confidentiality.

In manufacturing, a Joint Health and Safety Committee or safety representative is mandatory for workplaces with five or more employees. Programs should prioritize addressing issues in manufacturing establishments and creating a safe and respectful environment for all employees. Employers should review the workplace harassment program at least annually.

Directors/inspectors appointed by the Ministry of Labour have the power to enforce the OHSA. Failure to comply could lead to fines up to $1,500,000. Additionally, a director or officer of the company may also face imprisonment and/or a fine up to $1,500,000.

Even in wrongful dismissal cases, courts also have the authority to order employers who do not meet their obligation to prevent workplace harassment under the OHSA to pay aggravated damages, along with pay in lieu of termination notice. In Bassanese v. German Canadian News Company Limited et al., in addition to $129,433.17 as pay in lieu of notice and lost benefits, the Ontario Superior Court of Justice awarded $50,000 in aggravated damages because the employer failed to take proper action on the employee’s harassment complaints

Workplace discrimination and the code in the manufacturing industry

Employers must ensure their workplace is free from discrimination based on grounds protected by the Code, such as race, gender, and disability. All aspects of employment must be treated equally, including pay rates and accommodations for workers with disabilities. Failure to do so may result in discrimination complaints and costly fines.

Recently, in Imperial Oil Limited v. Haseeb, the Ontario Court of Appeal ruled that requiring permanent residency status as a minimum condition for employment is discriminatory. As a result, the Court restored the decision by the Human Rights Tribunal of Ontario and the employee was awarded $120,360.70 in damages for lost income, injury to dignity, feelings and self-respect, and pre-judgment interest.

Workplace harassment and discrimination training

Although not required, it is good practice for employers in the manufacturing industry to provide training on workplace harassment and discrimination. This helps employees understand their rights and responsibilities and fosters a respectful work environment. Training should address unique challenges and potential hazards and cover how to recognize and report incidents in the manufacturing setting.

The overlap of harassment and discrimination

Under the OHSA, workplace harassment means:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b) workplace sexual harassment.

This definition is broad enough to include harassment prohibited under the Code. As such, employers are obliged to properly address workplace harassment related to protected grounds under both the OHSA and the Code.

Section 46.3(1) of the Code provides for the vicarious liability of employers for the acts of their officers, employees or agents, when they fail to address the issue of harassment.

In Strudwick v. Applied Consumer & Clinical Evaluations Inc., the Ontario Court of Appeal gave guidance on how Section 46.3(1) should be applied:

While a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to harassment, the failure of management to deal with the harassment, thereby creating a poisoned work environment, is a violation under s. 5(1) of the Code for which the corporation can be held vicariously liable.

Osmani v. Universal Structural Restorations Ltd., a decision by the Ontario Superior Court of Justice, is an example of how the employer’s failure to address workplace harassment incurred liabilities under the Code. In this case, the company failed to investigate allegations of workplace harassment, leading to discrimination under the Code. The supervisor harassed and assaulted the plaintiff, resulting in $110,000 damages for battery and assault, and $50,000 damages for discrimination. The company was held vicariously liable.

Employers in the manufacturing industry should take steps to address and prevent workplace harassment and discrimination. It is important to have a qualified employment lawyer review your policies to make sure you are compliant with the OHSA and the Code. Failure to comply can have costly consequences.