Understanding Workplace Issues

Part 1

Understanding Workplace Issues

Part 1

Workplace and

Before we get into various workplace issues, it is important to understand what we mean when we say “workplace.” The definition of workplace may seem obvious to many employees who routinely enter their place of employment in the morning, afternoon, or evening, sign in or sit at their desks and begin their work for the day. But what about working from home arrangements? Travelling to an assembly? A summer student?

Workplace and

Before we get into various workplace issues, it is important to understand what we mean when we say “workplace.” The definition of workplace may seem obvious to many employees who routinely enter their place of employment in the morning, afternoon, or evening, sign in or sit at their desks and begin their work for the day. But what about working from home arrangements? Travelling to an assembly? A summer student?

Common Workplace Issues


The legal definition of harassment is “to engage in a course of vexatious comment or conduct that is known or ought to reasonably be known to be unwelcome”. There are several components to this definition that can be broken down into parts.

Common Workplace Issues


The legal definition of harassment is “to engage in a course of vexatious comment or conduct that is known or ought to reasonably be known to be unwelcome”. There are several components to this definition that can be broken down into parts.


Discrimination includes negative attitudes that can be expressed as “isms” (ageism, sexism, racism, etc.)

and refer to a way of thinking about other persons based on negative stereotypes about race, age, sex, etc. When people are stereotyped, all people in the group are given the same characteristics, regardless of their individual differences.


Discrimination includes negative attitudes that can be expressed as “isms” (ageism, sexism, racism, etc.)

and refer to a way of thinking about other persons based on negative stereotypes about race, age, sex, etc. When people are stereotyped, all people in the group are given the same characteristics, regardless of their individual differences.

Workplace Issues

The legal definition of harassment is “to engage in a course of vexatious comment or conduct that is known or ought to reasonably be known to be unwelcome”. There are several components to this definition that can be broken down into parts:

  • A “course” of comment or conduct means that harassment is typically more than one incident (although one incident, depending on severity, can still constitute harassment)
  • “Vexatious” means conduct that cause feelings of frustration, annoyance, and/or shame and vulnerability.
  • When an incident “ought to reasonably be known as unwelcome,” it means others would also define it as harassment.

It is important to note that identifying harassment is usually based on case-by-case circumstances. For instance, if an employer is providing critical feedback that you do not like as part of their performance management responsibilities, this would not constitute harassment.

Workplace harassment is illegal. Workplace harassment also leads to many non-legal effects, like loss of productivity, physical and psychological harm, staff turnover, low morale, negative publicity, and future recruitment issues. Harassment, if left unchecked, can escalate into workplace violence.

All employees/workers, including supervisors, are required to:

  • Treat coworkers with respect
  • Comply with their workplace’s harassment prevention policy
  • Report incidents of harassment in accordance with their workplace’s reporting procedures
  • Cooperate in any harassment investigations
  • Refrain from reprisals (not retaliate or punish someone who reports incidents of harassment)

Harassment and violence become a human rights violation when the incident(s) arise from discrimination, including being targeted or treated differently, or harassed based on the following protected grounds:

  • Disability
  • Age
  • Creed
  • Sex/pregnancy
  • Family status
  • Marital status
  • Sexual orientation
  • Gender identity
  • Gender expression citizenship
  • Race
  • Place of origin
  • Ethnic origin
  • Colour
  • Ancestry


As an employee facing difficulties in the workplace such as harassment and/or discrimination, the ability to identify and communicate the type of issue you are experiencing may help you in seeking a resolution. For instance, general harassment and discrimination based on the protected code grounds listed above are two different experiences.

The following decision tree may aid you in understanding different types of harassment. This will help you be able to spot them when you see them and know what avenues might be available, what legislation might apply, and where you would want to call for legal information, which is found at the beginning of Part II of the toolkit.

There can be many grey areas where there is not a clear distinction between general harassment and discrimination. You are not expected to determine this alone. Whether you call a legal aid clinic or other public legal information centres, they will do their best to point you in the right direction based on a particular situation.

Lateral violence is a form of bullying and harassment that may impact First Nation communities. It differs from general workplace violence in that it is a cycle of abuse rooted in factors such as colonization, oppression, intergenerational trauma and the ongoing experience of racism and discrimination. When trying to resolve or get help for an issue of lateral violence, it will most likely be resolved in the same ways as other forms of harassment. These pathways are outlined in Part II of the Toolkit. However, it can be helpful to know when a particular situation is lateral violence, as it will likely need a more trauma-informed approach and a culturally-specific resolution.


  • Nonverbal intimation (raising eyebrows, making faces, eye rolling)
  • Sarcasm
  • Yelling or using profanity
  • Handing over work assignments with unreasonable deadlines or duties that will ensure the person will fail
  • Obvious name calling
  • Bickering
  • Making snide comments and remarks
  • Being purposely unavailable to meet with staff
  • Whining
  • Blaming
  • Making jokes that are offensive by spoken word or email
  • Belittling a person’s opinions
  • Making up and/or exaggerating scenarios
  • Repeating rumours
  • Undermining activities
  • Using put downs
  • Gossiping
  • Ignoring, excluding, or freezing out people
  • Withholding information or giving the wrong information purposely
  • Constantly changing work guidelines
  • Blocking requests for a promotion, leave or training
  • Not giving enough work so the individual will feel useless
  • Refusing to work with someone
  • Backstabbing
  • Complaining to peers and not confronting the individual
  • Failing to respect privacy
  • Breaking the confidences of others

When someone is experiencing lateral violence, it can cause the following mental, emotional, and physical issues. It is important for an employer, human resources, and health and safety committees to be able to spot the following harms that are created by lateral violence so that they know when someone may need help:

  • Sleep disorders – either too little or too much sleep;
  • Changes in eating habits – either eating more or less or differently;
  • Weight loss or gain;
  • Moodiness;
  • Self-doubt – you question all your decisions and abilities;
  • Decreased self confidence;
  • Feelings of worthlessness;
  • Forgetfulness;
  • Chronic anxiety;
  • Depression;
  • Emotional and teary eyed;
  • Missing work more often; and Weakening immune system – getting sick or illnesses more frequently

A workplace may be experiencing lateral violence when there is an atmosphere of the following:

  • High staff turnover;
  • Loss of corporate history;
  • Low morale;
  • Decreased customer service;
  • Increased financial costs;
  • Increased absenteeism;
  • Lack of teamwork; and
  • Unhealthy competition

A workplace where there is gossip, discriminatory remarks, and negative attitudes, even if it is not directed towards anyone in particular, can create a poisoned work environment. For instance, if a co-worker makes a comment about a customer, patient, or community member that involve their age or reputation in the community, it can cause anxiety or worry that these opinions are held about employees in the workplace.

While a poisoned work environment is not harassment, it relates to the discrimination and psychological well-being in the workplace. Much like the atmosphere created by lateral violence, it is damaging to the employee’s well-being and overall productivity in the workplace.

Whether the employer overhears these remarks or are informed by an employee, they have an obligation to address it and create a more positive, inclusive work environment. Having the proper policies and protocols in place, such as the ones in Part II of this toolkit, is a minimum standard for creating this type of work environment.

The Canadian Centre for Occupational Health and Safety describes family (domestic) violence as any form of abuse or neglect that a child or adult experiences from a family member, or from someone with whom they have an intimate relationship. It has also been described as the abuse of power within relationships of family, trust or dependency that endangers another person.

Overall, family (or domestic) violence is a pattern of behaviour used by one person to gain power and control over another with whom they have or have had an intimate relationship. It can include many forms of behaviours.

Although we may think of family (domestic) violence as a private issue, the effects of this violence often enter the workplace due to the impacts it has on mental, emotional, and physical well-being. An employee may receive harassing or threatening phone calls or inappropriate visits from the family member at the workplace. Their experience of violence may affect their workplace performance and attendance, leading to issues at work.

There are additional dimensions to harassment and violence in a family relationship that are unique, such as:

  • Using property, pets, or children to threaten and intimidate

  • Not arriving for child care

  • Economic abuse such as withholding or stealing money, stopping a partner from reporting to work, or from getting or keeping a job

  • Sexual, spiritual, or emotional abuse or neglect

Sexual harassment is defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to negative job-related consequences for the person experiencing harassment. It attacks the dignity and self-respect of the victim, both as an employee and as a human being. Sexual harassment may be a display of economic power or superiority over another person; it can also result from the learning of unhealthy behaviours or boundaries. It is important to be aware of how your actions affect others and learn healthy communication and boundaries with your coworkers or employees.


  • Demanding hugs
  • Invading personal space
  • Making unnecessary physical contact, including unwanted touching
  • Using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
  • Leering or inappropriate staring
  • Making gender-related comments about someone’s physical characteristics or mannerisms (such as clothing, weight, and appearance)
  • Making comments or treating someone badly because they don’t conform with sex-role stereotypes
  • Showing or sending pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online)
  • Sexual jokes, including passing around written sexual jokes (for example, by e-mail)
  • Rough and vulgar humour or language related to gender
  • Using sexual or gender-related comments or conduct to bully someone
  • Spreading sexual rumours (including online)
  • Making suggestive or offensive comments or hints about members of a specific gender
  • Making sexual propositions
  • Verbally abusing, threatening, or taunting someone based on gender
  • Bragging about sexual prowess
  • Demanding dates or sexual favours
  • Asking questions or talking about sexual activities
  • Making an employee dress in a sexualized or gender-specific way
  • Acting in a paternalistic way that someone thinks undermines their status or position of responsibility
  • Making threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal).

Relevant Legal
Case Summaries

“There is no doubt that there is long-established caselaw at this Tribunal supporting that liability for harassment by an employee can be imposed on an organization respondent where the harassing employee forms part of the “directing mind” of the organization respondent” – Para 11.

The Facts:

The applicant alleged that her employment with the respondent was terminated due to her pregnancy. The allegation was based on communications via text message to the applicant from a co-worker.

The co-worker exaggerated her work authority and led the applicant to believe that the co-worker had authority over employment matters.

The co-worker did this through engaging in the following conduct:

  • Told the applicant not to disclose her pregnancy to their mutual employer;
  • Lied to the applicant repeatedly about intending to disclose the pregnancy on the applicant’s behalf;
  • Made unwarranted statements about the employer’s attitude towards pregnant women;
  • Pretended she informed the employer of the applicant’s pregnancy;
  • Sent a number of texts falsely indicating the employer was terminating the applicant’s employment because she was pregnant.


The Tribunal dismissed the primary allegations of discrimination on the basis of gender / pregnancy but went on to consider whether the respondent was liable to the applicant for the arguably harassing nature of the conduct of the co-workers.

Section 7(2) of the Ontario Human Rights Code, RSO 1990, protects employees from workplace harassment by an “employer or agent of the employer or by another employee.” While section 46.3 of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment. This is known as “vicarious liability.”

However, the Tribunal held that the employer was not liable for the co-workers’ conduct given Section 46.3(2). Under Section 46.3(2), if a company or organization asks, the Tribunal will state in its decision whether an action taken by one of its employees or representatives was done with or without the approval of the company or organization.

The Tribunal went on to consider whether the friend’s texts constituted harassment under the Code; however, ultimately held that even if the friend’s conduct amounted to harassment under the Code the Employer could not be held liable. The Employer was unaware of the texts initially but then once aware asked the Applicant to send them the text messages but she refused. The Employer then made inquiries of the friend regarding the texts but she denied knowing what the Applicant was talking about. The Tribunal found that, at that point, there was nothing further the Employer could do.

This decision illustrates the impact new technology can have in the workplace as well as the importance of employers taking positive steps to investigate and address harassing behaviour by its employees in the workplace. The Tribunal was clear that an employer could be held liable for the harassing behavior of its employees if the employer fails to take reasonable steps to correct the behavior.

This decision confirms that Ontario employers will not be liable for harassing behavior between employees when the employer can demonstrate:

  • The employer was unaware of the improper or inappropriate behavior; and
  • The employer could not have taken reasonable steps to prevent it.

Where the alleged harasser is a “directing mind” of a corporation, the corporation could be held liable for incidents of harassment.


The employee alleged that he was discriminated against in the course of his employment on the basis of disability. The employee worked as a sales agent. The employee was sober for 8 months leading up to his employment for his employer but has previously battled addictions for 23 years.

But for two weekends during summer 2009, the employee was sober for the duration of his employment.

The employer first became aware of the employee’s addiction early in his employment when the employer asked him out for a drink after work. The employee declined the offer and shared he was a recovering addict. The employee told his employer about his relapse and the employee testified that it did not affect his work.

Shortly after his relapse, the employee requested payment from his employer for his outstanding commissions. The employee worked as a car sales agent. However, when he requested payment, he was advised that he would not get paid until he checked himself into a detox program. The situation worsened when the employer called the employee a “f—cking crack-head.”

Later the same month the employee learned that his employer sent an email to the other sales agents stating that the employee was suspected to have been stealing for months and “…is a former crack head”. The employer also contacted some of the employee’s business contacts at dealerships and told them that the company was contemplating possible legal action against the employee.

The employee resigned from his employment.


The Tribunal found that the employee’s resignation from the company was a direct result of the treatment he received from his employer.  He was awarded damages for lost wages for three months and was awarded additional damages in the amount of $25,000.00 for the violation of his right to be free of discrimination in the workplace, as well as the compensation for the injury to his feelings, dignity, and self-respect.

This Supreme Court of Canada ruling addresses the implied duty of the employer to treat its employees fairly, with civility, decency, respect and dignity. (p84).


The employee was appointed under the Legal Aid Act as the Executive Director of the New Brunswick Legal Aid Services Commission for a seven-year term. Halfway through the term, the employment relationship started to deteriorate and discussions began between the employee and employer regarding buying out the remainder of the employee’s fixed term contract. The employee went on sick leave.

During his sick leave, the employee was advised that the employer was suspending him indefinitely, with pay, and delegating his duties to another person. Unbeknownst to the employee at the time, the employer wrote to the Lieutenant-Governor in Council recommending the revocation of the employee’s appointment for cause, under the Legal Aid Act. Eight weeks into the suspension, the employee commenced a claim for constructive dismissal.

The employer argued that in suing the employer, the employee had resigned. The trial judge found in favor of the employer, as did the Court of Appeal. The Supreme Court of Canada allowed the appeal and found in favour of the employee.


The SCC held that the employee had been constructively dismissed. Is it often considered a constructive dismissal if an employee quits because the employer changed the terms of the contract –ie.: hours of work; salary; benefits.

Here, the Court clarified that there are two types of constructive dismissal:

  1. Serious Unilateral Change is a breach:

i. of an essential term of the contract by the employer;
ii. that was sufficiently serious to cause a reasonable person in the employee’s position to feel that the employer had substantially changed an essential term of the employment contract.

  1. Cumulative Acts is a series of acts that, taken together, show that the employer no longer intended to be bound by the contract. This means that an employee can prove constructive dismissal without identifying a specific term that was breached and, if viewed objectively, made continued employment intolerable.

This case demonstrates a continuing evolution in the judicial approach to workplace sexual harassment. In the past, incidents of workplace sexual harassment were viewed on a spectrum that ranged from less serious to very serious.

As indicated in Render, the more recent judicial direction treats all sexual harassment incidents, including isolated incidents, as serious. In this case, the Court of Appeal confirmed that a single incident of workplace sexual harassment can constitute just cause for dismissal.

In R. v. Chase 2 S.C.R. 293, the Supreme Court of Canada defined sexual assault as an assault which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. The Court considered the body part that was touched, the nature of the contact, and the circumstances around the event.


Mr. Render was an operations manager with 30 years of service and a flawless employment record with no incidents of discipline. The office of ten men and three women was described as a “friendly and joking environment.”

Eight days after the introduction of a “zero tolerance” workplace harassment and discrimination policy, Mr. Render, in exchange of typical banter with a female co-worker, slapped the co-worker on the buttocks.

After an investigation, Mr. Render was terminated for cause, so he received no severance, termination, or vacation pay.

Mr. Render brought an action for wrongful dismissal.


The trial judge found that Mr. Render’s actions were an attack on the dignity and self-respect of his co-worker and therefore unacceptable in a modern workplace. The judge found that the incident caused a breakdown in the employment relationship that justified termination for cause. Mr. Render appealed the wrongful dismissal decision.

Since termination for cause is without notice and without pay in lieu of notice, termination for cause is reserved for those instances in which the employee’s misconduct is incompatible with the fundamental terms of the employment relationship such that the relationship cannot be sustained. The Court used the following steps to apply the McKinley standard, which sets out the appropriate considerations for dealing with misconduct:

  1.    Determining the nature and extent of the misconduct;
  2.    Considering the surrounding circumstances; and
  3.    Deciding whether dismissal is warranted (i.e., whether dismissal is a proportional response).

The Court of Appeal found that the trial judge had properly applied the above test and weighed and considered relevant factors. The trial judge’s decision referred to the Employer’s harassment and discrimination policy and noted that Mr. Render was a manager responsible for implementing the policy. The trial judge took into account the sexual nature of the impugned contact and Mr. Render’s lack of appreciation of the seriousness of his conduct. Mitigating factors, including Mr. Render’s long and unblemished employment history, were also considered by the trial judge.  The Court of Appeal concluded that there was no error in the trial judge’s approach or analysis and that his finding of just cause termination was entitled to deference.

In this case dealing with workplace bullying and the intentional infliction of mental suffering, the Ontario Court of Appeal held that the conduct must be offensive and outrageous, calculated to produce harm, and result in a visible and provable injury.


After the Plaintiff refused to falsify a store temperature log at the request of the employer, the Plaintiff was subjected to both a formal disciplinary session and ongoing profane and disrespectful language by the employer.

The Plaintiff attempted to convey her concerns to Wal-Mart management. Her concerns were not addressed. The employer as made aware of the Plaintiff’s complaint to management, in breach of Policy and thereafter unleashed a torrent of abuse on the Plaintiff.

Between June and November 2009, the employer belittled, demeaned, berated, criticized, taunted and humiliated the Plaintiff continuously and often, in front of co-workers and customers. For example, the employer told the Plaintiff that she was stupid that and that she was blowing her career away.

The Plaintiff met with Wal-Mart senior management again on October 26, 2009, regarding the abusive behaviour. She also continued to report specific examples of his abuse. On November 14, 2009, Wal-Mart informed the Plaintiff that it had conducted an investigation and concluded that (i) her complaints were unsubstantiated, and (ii) she was trying to undermine the employer’s authority. The Plaintiff left the meeting in tears. The Plaintiff suffered from loss of appetite, insomnia, and weight loss. She was described by her colleagues as looking ill, grey, and haggard.

There was a culminating incident on November 18, 2009. On this occasion, the employer grabbed the Plaintiff by the elbow, in front of a group of employees, and challenged her to prove that she knew how to count to ten. The Plaintiff was so humiliated she left the store. After this incident the Plaintiff sent an email to Wal-Mart saying she would not return to work until her complaints regarding the abuse were dealt with. The complaints were not dealt with and the Plaintiff never returned to work.


The Ontario Superior Court of Justice (“ONSC”) jury found that the Plaintiff had been constructively dismissed and awarded her a severance package totaling 20 weeks’ pay, in accordance with an employment contract she had entered into with Wal-Mart. Wal-Mart had in fact continued the Plaintiff’s salary for eight (8) months after she stopped working, so no additional amounts were owed in this regard.

The ONSC jury made punitive damages awards against both Wal-Mart and the employer totaling $1,150,000. The ONCA did, however, take issue with the jury’s punitive damages awards. The ONCA reduced the punitive awards by roughly 90%, to $110,000. The ONCA concluded that punitive damages amount awarded by the jury, when coupled with the compensatory damage award, produced a sum that was inordinately large and higher than what was rationally needed to punish both defendants.


Click the image to view
the full size flowchart

Harassment Flowchart