JRSB205 (spring 2010)
Topic 2, Lesson 5, Activity 1: Operating a Business...Legally Speaking
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 for both harassment and discrimination 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 no room for doing nothing when it comes to any form of harassment or discrimination. The issue should be addressed at least as an ethical problem (considering that legal issue involve ethical issues ).
Answering your questions, there are a lot of addition to write here; I have wrote a lot, so I want that the other group members could participate and to freely appears as they have worked.
Instead of the sexual harassment event was not in the work place, it has a strong relationship with the works at Le Petit and it could have a potential damage in the work place.
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. People often feel that there are only two options: living with the events and or trying to change the situation from within or leaving to preserve yourself respect and hoping it will send a message.
The Supreme Court of Canada stated that: “discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed .”
Once the problem is known, we have an ethical responsibility to find a solution. If we do not recognize or we do not try to fix the issues at hand it could represent a breach of ethical practises. This may not represent a legal liability, however it would be a social and a business liability.
Nobody wrote about The Canadian Human Rights Act, the subject of this assignment. Someone should write something about the CHRA
Janzen v. Platy Enterprises Ltd. case  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):”
Robichaud v. Canada (Treasury Board) case  is also a similar case where a supervisor of the organization has been accused of sexual harassment. This case also shows the legal risk our company might encounter. We should perhaps add that while the conduct of an employer is theoretically irrelevant to the imposition of liability in a case like this, it may nonetheless have important practical implications for the employer. Its conduct may preclude or render redundant many of the contemplated remedies. For example, an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps. These matters, however, go to remedial consequences, not liability.
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 theses employees. We would explain that we have a Code of Conduct that every employee has agreed to sign; which includes sexual harassment, racial discrimination and psychological harassment. In this case if any of the above has been proven we would explain that the situation would be immediate grounds for termination. At this point we would need to consult a lawyer to know what our next steps as owners would be.
The course of action would be trying to understand the situation. We need to be sure that the accusation has merit 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. A lawyer consultation will be necessary.
- If Roger does not recognize his offences, we have a huge problem. Both accusations (sexual harassment and discrimination) will be very difficult to prove, and we cannot be sure if they are true or simply they are a complot. Management skills will be a key issue here dealing with this problem (e.g. we could change of positions, roles, responsibilities, etc of any of the implied). In a second instance, we should consult a lawyer.
In the case with Rodger all of the above has been made claim however we would need to take in consideration Rodgers side of the events, and we would need to proof on a reasonable doubt that the allegations are made true by the individuals. We would to look at both sides of the events. As co-owners I would also talk with the rest of the staff to make sure that there have been no other claims of harassment or discrimination. Once we as owners have research we would also need to consult a lawyer to help if the allegations have been proven true.
In the global context of Le Petit, 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 behaviour. In addition, our reputation with our employees could be damaged because they would believe that Le Petit tolerates harassment and discrimination.
If we do not handle this situation properly it could cost us lawsuits, damage our public image, loss in productivity, loss in profit, greater absenteeism, health and safety risks, low employee morale and so forth. An organization that does nothing to prevent harassment, therefore, may well find itself facing serious financial and legal consequences .
Canada Labour Code  states that
“247.3 Every employer shall make reasonable effort to ensure that no employee is subjected to sexual harassment”.
Also as owners we need to be aware that this situation not only harms the restaurants reputation it can also harm an individual’s self confidence. “A Quote from Chief Justice Dickson (Alberta Reference Employee Relations Act Fitzgibbon 07) made the comment “Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self-respect.”.” 
Having Roger leave is going to cost Le Petit money, because they are losing a highly trained employee. In contrast, if they do not terminate Roger’s employment, the other two employees will leave Le Petit; costing money too. It is a large expense to train employees. Le Petit needs to consider how much money it is going to cost to train a new manager to take Roger’s place. “Employee turnover, stress leaves, and productivity drops are costly. British research has estimates that 40 million working days are lost each year due to workplace bullying.” 
We can also look at Peter Bowal’s article which says that, “The Canada Safety Council reports that bullied employees waste between 10 and 52% of their time at work, allocating time to defending themselves, networking for support, and pondering the problem. Employee turnover, stress leaves, and productivity drops are costly. British research has estimates that 40 million working days are lost each year due to workplace bullying” 
 Bowal, Peter. (2007). Harassment at Work, LawNow, Professor of Law with the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 Yates, R., Bereznicki-Korol, T. and Clarke, T. (2008). Business Law in Canada (8th edition.) Ontario, Canada: Person Education Canada.
 Janzen v. Platy Enterprises Ltd.,  1 S.C.R. 1252
 Canadian Human Rights Commission. Anti-Harassment Policies. Retrieved May 21, 2010 from
 Canada Labour Code, R.S.C. 1985, c. L-2
 McKay-Panos, L. (2009). Human-Rights Law: Recent Developments in the Interpretation of Charter s. 15(1), LawNow, Alberta Civil Libraries Research Centre, Calgary
 Robichaud v. Canada (Treasury Board),  2 S.C.R. 84
 Bowman, Pam (2008) Psychological Harassment and Bullying in the Workplace, http://www.bpwsaskatoon.com/PDF's/WHBE/April_22nd_Presentation_Psychological_Harassment_and_Bullying_in_the_Workplace.pdf
 Foots, Valerie (2002) Desk Rage or Bully for You, Retrieved May 21, 2010 from http://www.lawnow.org/Downloads/documentloader.ashx?id=460