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Courts and Tribunals have increasingly found in many instances that harassment “need not occur in the physical workplace to find that it occurred ‘in the workplace’”. To be the workplace, legal decision makers have focused on whether there is a nexus between the activity or the location and work. This is an interesting question of fact and law, with the dividing line between what is personal and what is of concern to the employer open to interpretation.
Take the quiz below to see if you can identify what has and has not been found to be the workplace.
- True or False? It was the workplace when, during a lunch break, an employee stapled his scrotum to a wooden board in front of his colleagues, “Jackass style”. This incident was the culmination of a number of pranks or stunts by the employee and his colleagues and some of his colleagues contributed funds to see if he would actually do it.
- True or False? It was the workplace when a government employee made posts on her personal blog that ridiculed co-workers and expressed contempt for managers.
- True or False? It was the workplace when a worker texted a co-worker after she left the workplace and when he drove by her home after leaving work.
- True or False? It was the workplace when a co-worker who had been invited to watch television in the complainant’s hotel room during a rest break on a work trip stripped nude and fondled the complainant when she nodded off.
- True or False? It was the workplace when at a staff Christmas party at a restaurant, a manager told staff members that one of them “would have to show everyone their titties,” then, directing his next comments to only one of the staff members said, “You’re exempt dear because your titties are too small.”
Drumroll please…the answers are below.
- True: In International Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd, 2011 CanLII 46582 (ON LRB) it was held that “simply because some men like the Jackass principals, are prepared to engage in grossly stupid behaviour and then attempt to profit from their stupidity through television, internet videos and movies…does not mean that kind of behaviour ought to be tolerated in the workplace, even if it takes place outside of working hours during employees’ lunch or break periods”.
- True: In Re Government of Alberta and Alberta Union of Provincial Employees (“R”) (2008), 174 L.A.C. (4th) 371 the arbitrator found that “a blog is a form of public expression, and that unless steps are taken to prevent access, anyone in the world with access to the internet may read the content…the issue was the content of the blog, and public access to that content…once the blogs were posted, they were in the public domain and the [employee] had lost control over who would read them”.
- True: In C.U. v. Blencowe, 2013 HRTO 1667 (CanLII), the Tribunal found that driving by a colleague’s home (in addition to other activities) were sufficiently connected to the workplace to be “in the workplace” and were part of a pattern of harassment that poisoned the workplace.
- True: In Goodwin v. Birkett, 2004 CHRT 29 (CanLII), the Tribunal found that the complainant and the respondent were employed as bus operators by Penetang Midland Coach Lines and had become friends on the job. During an assignment they stayed at a hotel. One evening the respondent telephoned the complainant from his room asking if she wanted to do anything that evening. They decided to watch television together in her room. At some point, she nodded off to sleep. She woke up at about 3 a.m. and found the respondent lying on her bed next to her. He was nude and was touching her with his hand below the waist in her “private area”. She immediately sat up and told him to stop. The Tribunal found that this incident constituted sexual harassment and caused the complainant to no longer be comfortable in the workplace with the respondent.
- True: In Emergis Inc. v. Doyle 2007 CanLII 1914 (Ontario) the Court explained that the Arbitrator had found that the comments at the Christmas party, either in isolation or in conjunction with the other comments, may properly be described as sexual harassment either under the definition in the company’s policy or in the definition set out in Janzen v. Platy Enterprises Ltd.
Yes, I cheated a bit. All of the answers are true. These situations indicate that the definition of the workplace has expanded to include many situations and locations outside of and away from, the physical workplace. Therefore, given the creativity and ingenuity of employee behaviour we will increasingly see problematic behaviour outside of the physical workplace fall under the definition of workplace harassment.
How did you rate?
1 correct – Intern
2 correct – Trainee
3 correct – Workplace Superstar
4 correct – Director of HR
5 correct – Chair of the HRTO
About the Author: Toronto Employment Lawyer Andrea Lowes conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Andrea also assists her clients by providing workplace investigation and human rights training to staff at all levels. Andrea’s practice also includes workplace assessments and reviews.