JRSB205 (spring 2010)
Topic 2, Lesson 5, Activity 1: Operating a Business...Legally Speaking
Group C
Le Petit has a zero tolerance policy for any type of harassment towards employees, employers, partners and customers. At Le Petit we take full responsibility for insuring that all our employees feel safe and secure from any workplace harassment within in our restaurant.
As a co-owner, once we are aware of any discretion we need to address that discretion immediately. In particular this case presents two different levels of analysis. The first level is related with an ethical issue, and the second level with a potential legal issue. Both could represent serious personal and business liability for us, in consequence there is not room for doing nothing. The issue should be addressed at least as an ethical problem (considering that legal issue involve ethical issues [2]).
Ethic issue
Peter Bowels describes psychological harassment as: “Psychological harassment is a pattern of acts or words intended to intimidate, offend, degrade, or humiliate. Harassment and bullying do not end in the playground. It has occurred throughout history in the workplace in many forms. Most of the study and law into workplace harassment has been concerned with sexual harassment. Non-sexual, psychological harassment has received attention only very recently.” Thus allowing to not only explains sexual harassment within the company but also the psychological harassment as most of society is unaware of the psychological aspect of harassment.
Legal issue
Janzen v. Platy Enterprises Ltd. case [3] presents an antecedent for a similar case where one of the respondents was the company (also the person accused of sexual harassment). This case and its citations show the legal risk that Le Petit could be involved. In this case we can read “…. the statute requires that employers be held liable for the discriminatory acts of their employees where those actions are work-related. He did not try to apply principles of vicarious liability, saying that this was unhelpful and, in any event, unnecessary since the employer's liability could be found within the statute (at p. 95):”
As conclusion, we need to take many attention to this issue and a consultation with a lawyer will be necessary.
Procedure
We would call the other co-owners in as well as Roger and explain what we have heard from two employees on the potential harassment that Roger has forced on to the two employees. We would explain we have a Code of Conduct that everyone has signed off; on it, sexual harassment, racial discrimination and psychological harassment cases right in front of us which would be immediate grounds for dismissal with legal consequences. At this point a consultation with a lawyer will help in the next steps.
The second step will be trying to understand the situation. We need to be sure that the accusation has room and for example it is not a complot against Roger:
- If Roger recognizes his offences, we need to proceed at least with a writing letter; probably with some sanction. I lawyer consultation will be necessary.
- If Roger does not recognize his offences, we have a huge problem. Both accusations will be very difficult to prove, and we can not be sure if they are true or simply they are a complot. Management skills will be key here to deal with this problem (e.g. we could change of positions, roles, responsibilities, etc of any of the implied). In a seconds instance, we should consult a lawyer.
We also have to look at our reputation within the community if we didn’t let go of Rodger we could lose customers because they would think we condone his behavior. Also, our reputation with our employees they would believe that we would tolerate harassment and they may take things into their own hands which could turn into violence people would go after Rodger or Rodger would think it is ok to do this to staff members and he may even take it one step further and maybe even rape someone.
If we do not handle this situation properly it could cost us lawsuits, damaged public image, loss in productivity, loss in profit, greater absenteeism, health and safety risks, low employee morale and so more. Moreover, employers can be held legally responsible for harassment in their workplaces. Courts may impose penalties on the employer, even if not involved in the harassment. An organization that does nothing to prevent harassment, therefore, may well find itself facing serious financial and legal consequences.
Canada Labour Code, R.S.C. 1985, c. L-2 states that
“247.3 Every employer shall make reasonable effort to ensure that no employee is subjected to sexual harassment”.
[1] Bowal, Peter. (2007). Harassment at Work, LawNow, Professor of Law with the Haskayne School of Business, University of Calgary in Calgary, Alberta.
[2] Yates, R., Bereznicki-Korol,
T. and Clarke, T. (2008). Business Law in Canada (8th
edition.) Ontario, Canada: Person Education Canada.
[3]
Janzen v. Platy Enterprises
Ltd., [1989] 1 S.C.R. 1252
