Preparing workplace harassment complaints: Employment lawyer with The Canadian Press

Interview Summary

An ongoing concern for many employees in both traditional workspaces and hybrid or remote work arrangements continues to be workplace harassment.

Many employees are unaware of their rights, or employer obligations. What can employees do to protect against bullying and harassment? Can employers face consequences for failing to resolve complaints?

Jon Pinkus, a Toronto employment lawyer and Partner at Samfiru Tumarkin LLP, spoke with The Canadian Press’ Pascale Malenfant to discuss the rights of employees and what options are available to them in difficult circumstances.

Interview Notes

• Employees should know their rights: Pinkus began the discussion by emphasizing the importance of current employment laws. “Most provinces have a specific piece of legislation that protects workers against workplace harassment,” Pinkus said. “For example, in Ontario, it’s the Occupational Health and Safety Act. In B.C., it’s the Workers Compensation Act.”
• Defining workplace harassment: Employees should be wary of deeming uncomfortable practices at work or discipline as harassment. “What’s important for employees to note is that this doesn’t include performance management that may be uncomfortable, or even severe,” Pinkus explained.
• Employees should document all incidents: Pinkus noted that employees should always record instances of inappropriate behaviour, and do so in writing. “Employees also shouldn’t be afraid to record (audio of) an incident if they can, because in Canada, recording private conversations is legal as long as one of the parties consents — which in this situation, could be the employee.”
• Legal recourse for employees: Employees who feel departments within their workplace have failed to resolve the complaints can pursue other options. ” Employees have three main legal recourses: bringing a claim to the province’s labour-related ministry or commission, opening a case at the human rights tribunal, or trying their luck with litigation where they feel they have no choice but to resign from their position.”
• Proving constructive dismissal: Pinkus cautions employees from pursuing constructive dismissal due to workplace harassment. “Proving that a work environment is so toxic or so poisoned that you had no choice but to leave is a very high bar to meet,” he said, “which is why I generally don’t recommend (constructive dismissal claims) unless it’s a very clear case.”
• Accepting employer’s perspective: Employees do not and should not adhere solely to their employer’s assurances. “They might not tell you they owe your wages, severance or a safe work environment,” Pinkus said. “Remember that employers have different interests than you, which might mean you have to navigate some of these things on your own.”

Related Resources

For further insights and discussions related to workplace harassment, explore the following resources:

• Workplace investigations
• Recording workplace conversations at work in B.C