'The legal requirements are limited, but the practical implications are pretty significant,' employment lawyer says.
Red Bull Formula 1 team boss Christian Horner is under investigation after a complaint of inappropriate behaviour was made against him. While the nature of the complaint has not been confirmed, BBC Sport reported the claims relate to an allegation of inappropriate behaviour of a controlling nature.
In cases such as this, allegations of inappropriate behaviour typically pertain to themes like abuse of authority or a poisoned work environment, said Chris Pelkey, labour and employment lawyer at McInnes Cooper.
“While the nature of the allegations with respect to Christian Horner are unclear, normally, when you get allegations like that, it’s around abuse of authority or a poisoned work environment,” he said. “When you're dealing with abuse of authority, it's usually someone inappropriately leveraging their position, and a poisoned work environment is when there's behaviour that makes the workplace unbearable."
However, there is a fine line between managerial style and harassment, and the challenge for employers lies in discerning whether behaviour crosses this line.
When looking at harassment of a controlling nature, it usually involves someone limiting opportunities for certain employees or when they go beyond the scope of their regular managerial duties, which results in psychological torment or making an employee’s life difficult for no clear reason, Pelkey said.
“The question for the employer in this case is going to be ‘Is this a case of a micromanaging managerial style, or has it crossed the line into something that has no legitimate business purpose and is causing real emotional and psychological harm to other workers?’” he said regarding the allegations against Horner.
Most jurisdictions in Canada have legislation that requires employers to have violence and harassment policies in place. Most will also have a requirement that the employer ensure there's no reprisals and that followup procedures are put in place to make sure the employee isn't subject to further harassment, Pelkey said.
Employers must not only ensure that the complaint is properly investigated and handled but also that the employee who made the complaint isn’t penalized for raising the issue.
“The Acts really leave it open to employers to configure the processes they’re going to use to address the allegations, as long as they’re doing so,” Pelkey said.
When dealing with the person who's been accused of engaging in harassing behaviour, employers ultimately need to determine whether the allegations are true, and if they are, what’s the appropriate disciplinary response.
“I think there is certainly a cultural shift towards treating these situations more seriously,” Pelkey said. “Anytime you have allegations of harassment, whether it's the lowest level employee or the CEO, you need to take them very seriously and conduct a thorough investigation.”
However, there isn’t a set standard for rectifying these kinds of situations. Just because a harassment complaint is made doesn't mean that the next step is termination or cutting ties with that person.
It is important to look at the entire situation, whether the behaviour is likely to continue and if it is possible for the relationship with the employee to continue following the event, Pelkey said.
“Employers should typically look at the employee in question and the severity of the harassment or the harassing behaviour they engaged in, but also look at their work history, if this is part of a pattern events, if they were using their power deliberately to get something out of an employee and the relationship between the parties involved in the harassment,” he said.
However, legal protections for employees could result in further liabilities for employers, as most provinces have legislation that provides employees with several new avenues for addressing harassment complaints.
According to Pelkey, employers need to think about whether the constraints and restrictions put in place to keep an employee separated from the harasser make that employee feel safe, because feeling safe at work is an employee’s right under OHS legislation.
In New Brunswick, for example, under the Occupational Health and Safety Act, there are provisions that prohibit reprisals against employees who raise occupational health and safety issues in the workplace. This has been interpreted to include reprisals against employees who have filed harassment complaints, Pelkey said.
“The adjudicator in that case can't make a decision on whether or not there was harassment, but what they can make a decision on is whether or not that employee was treated differently or poorly by the employer in some way because they made a complaint,” he said.
Multiple provinces also have whistleblower protection under the Employment Standards Act, which is defined loosely and broadly and can incorporate employees who raise issues about harassment to toxicity in the workplace and who face a reprisal because of that.
If a complaint is made under the OHS reprisal provisions or the Human Rights Act, there is the potential for employee reinstatement and backpay and remedies that go beyond the monetary compensation you'd see in court.
Additionally, employers want to ensure they do not end up in a situation where the employee can allege constructive dismissal, and the employer could be looking at vicarious liability for other aspects like intentional infliction of emotional suffering.
“The legal requirements are limited, but the practical implications are pretty significant,” Pelkey said. “The biggest thing for employers to do is to take everything seriously. If you don't, there's huge potential for liability if you get it wrong.”
For employers, this means thinking not only about how to address the person who engaged in harassing behaviour but also what to do with the complainant going forward, he said.
“If an employer just decides the behaviour wasn't enough to terminate the person who engaged in harassment but also can't have both parties together anymore and decide to terminate the complainant and give them a payout, well, that's not really an option, because the employee has all these avenues available to them. And I do think we're going to see people taking advantage of that more and more,” Pelkey said.
