TorontoJobs.ca Employers Newsletter
    June 2006

Welcome to the June 2006 edition of the TorontoJobs.ca Employers Newsletter.

In This Edition

"Conflict Matters" by Cecil Norman

"Employment Law" by Earl Altman

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Conflict Matters by Cecil Norman, M.A.

Conflict resolution is all about treating people with dignity and respect. Conflict resolution is a strategy to resolve any form of conflict. If this strategy is used at work it is referred to as workplace conflict resolution. This strategy may consist of: investigation into a situation, implementation of a policy to prevent a situation from recurring, training to ensure appropriate behaviour, or negotiation of a solution through the use of a neutral third party. While all these strategies form part of conflict resolution, mediation is emerging as the key element for resolving conflicts in the workplace.

There are several mediation models: problem solving, settlement, facilitative, collaborative and transformative. Each or all of these mediation models, if properly applied, together with a clear anti-harassment policy, management training and negotiation allows for sustainable resolution of workplace conflicts. An anti-harassment/discrimination policy is a workplace principle that clarifies that harassment is against the law and will not be tolerated. It describes the types of behaviours that are discriminatory and indicates that management takes this issue seriously. It explains the disciplinary measures that 00would be applied, up to and including termination of employment if a claim of harassment is proven. It also establishes the steps and process to follow. It enables employees to utilize a third party to investigate and document evidence in a complaint and affect a resolution through negotiation without any fear of reprisal. Training comprises ongoing education for all staff and management to understand their roles and responsibilities under the anti-harassment policy. Using these measures will help ensure that employees are treated with dignity and respect.

About the author:
Cecil Norman holds a Masters Degree in Conflict Resolution. His column on Conflict Matters appears monthly. You may reach him directly at his practice, Human Rights Advisory Services Inc. Email: cnorman@hras.ca


Employment Law by Earl Altman,

AN EMPLOYER CAN BE HELD LIABLE
FOR THE ACTIONS OF ITS EMPLOYEES

Under the legal principle of vicarious liability, employers can be held liable for the actions of their employees taken during the course of employment. Such liability will extend for damages caused as a result of insensitive statements, damages for harassment, or discriminatory behaviour. The potential cost to an employer arising from such liability was demonstrated in the recent decision of Sulz v. R.C.M.P. In this decision of the British Columbia Court of Appeal, the Court upheld a trial decision in which an employee was awarded damages of $950,000.00 against the employer. The damages flowed from the actions of the employee's supervisor who made numerous improper comments to the employee during the course of her pregnancy and for approximately two years after her return from maternity leave. The gist of these remarks related to the allegation that the employee was milking the system by taking maternity leave and that he would enlist her co-workers to "get her" upon her return from maternity leave. The employee was legitimately concerned by these statements. She was diagnosed as suffering from major depression which resulted in an inability to sleep, significant weight loss, and other psychological trauma. The employee had complained to her supervisor about the conduct of her co-worker. Her supervisor took no steps to address her concerns.

The Court concluded that the harassment which the plaintiff detailed was, in fact, the cause of her medical condition. The psychological trauma was so severe that the Court concluded that she was unlikely to ever work again. It was on this basis that the Court awarded her the significant damages that it did.

The Court awarded the damages against both the employee and the employer. The Court found the employer liable on the basis of the employer's failure to enforce its own harassment policies and in its failure to take steps to prevent the conduct complained about.

The case highlights the fact that creating and publishing a harassment policy is not sufficient. Employers must take active steps to ensure that the provisions of the policy are adhered to and that instances of harassment are addressed promptly and adequately.

About the author:
Earl Altman is a partner with the Toronto law firm of Garfinkle Biderman LLP. He can be reached at (416)869-1234 Ext. 280 or ealtman@garfinkle.com


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