Understanding Key Concepts in Employment Law and Workplace Ethics

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Delve into the legal principles of employment law and workplace sexual harassment, exploring available remedies for victims. Learn about contract terms, termination conditions, the importance of good faith dealings, and common factors affecting re-employment. Gain insights into both statutory and common law notices of termination, and the nuances of constructive dismissal.

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Sharp Workplaces Rose Keith KC Partner, Harper Grey LLP January 29, 2024

Sharp Workplaces Training Practical Considerations in Employment and Civil Law Remedies for Workplace Sexual Harassment

What will we do today? Review basic legal principles of employment law and sexual harassment Review the types of remedies potentially available to victims of sexual harassment Group work with fact patterns with groups formulating remedies Review of the group solutions

Employment Law Basics Contract of employment Implied terms Reasonable notice Safe and harassment free work environment No change of fundamental terms without notice Compliance with minimum standards legislation Compliance with occupational health and safety legislation

Termination of Employment Quit Fired For cause Without cause Constructive dismissal Fundamental change to a substantial term or condition of employment

Reasonable Notice of Termination Contractual terms Enforceable? ESA compliance Consideration Signed prior to commencement of employment

Common Law Notice Age Length of employment Nature of employment Any other factors that may affect re employment Rough rule of thumb Short term employees

Implied duty of good faith and fair dealing What does that mean and why is it important? Requires employer to be honest and forthright with employees when they are terminated Duty to perform contract honestly and in good faith Non contractual damages Not for the usual hurt feelings that result from the termination itself Damages that flow from breach Moral damages punitive damages/aggravated damages Punitive to punish Aggravated - compensatory

Constructive Dismissal Employer changes terms or conditions of employment Implied duty to provide safe and harassment free work environment Remedy is same as without cause termination Remember duty of good faith

Occupational Health and Safety WorkSafe BC Bullying and Harassment policy Prohibited action Workplace injury

Sexual Harassment in the Workplace Unwelcome conduct of a sexual nature Detrimentally affects the work environment or leads to adverse job related consequences Intention doesn t matter, impact does

Examples of Sexual Harassment Comments about a person s body, gender identity, sexuality or sex life Sexual propositions Sexist jokes and language Demanding dates or sexual favours Display of sexual images where others can see it Actual and/or threatened physical contact Demeaning and sexually explicit bragging Sexually aggressive gestures Sending someone unwanted sexual images, text messages or emails Using sexist, transphobic or homophobic language or any other behaviour that targets someone s gender or sexuality Spreading rumours or gossiping about someone s sexuality Requiring employees to dress in a sexualized way Stalking, following and/or watching another person

What is not Sexual Harassment Legitimate and proper exercise of management authority and/or responsibilities in the workplace Legitimate and constructive feedback about job performance Disciplining staff in accordance with the duty to manage The employer s right to assign tasks Good natured consensual flirting, teasing or jesting that both parties are comfortable with and find acceptable and does not make one of the parties uncomfortable Office relationships that both parties are comfortable with and both parties consent Consent in a situation of power dynamic

Third Party Sexual Harassment Harassment committed by a third party that is not an employee customer, vendor, client, employee of another company

In Employment Concept of in employment considered broadly and includes application and interview stage, volunteer work, internships, off site work related obligations, and any conduct that has work related consequences, such as a co-worker or manager using social media to target

Dianna Waitress in a Greek restaurant Tommy the cook sexually harassing her When harassment stops, Tommy makes her life miserable Phillip the owner doesn t help Eventually Diana quits

Diannas Remedies 1. Human Rights sexual harassment is discrimination 2. Constructive dismissal failure to provide a safe and harassment free work environment a) Reasonable notice b) Breach of duty of good faith moral damages 3. WorkSafe complaint injury in the workplace 4. Prohibited action adverse consequence of reporting of harassment

Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252

Jennifer Work in a male dominated factory Repeated sexist comments Safety concerns raised at production meeting Complaint of sexual harassment Cursory investigation Termination

Jennifers Remedies Human rights complaint Termination as a result of raising complaint of sexual harassment Damages Reasonable notice contractual damages Moral damages for breach of duty of good faith WorkSafe Workplace injury Prohibited action