Bill 208 defines harassment as "any inappropriate conduct, comment, display, action or gesture by a person" that "constitutes a threat to the health and safety of the worker" and that either (A) is based on prohibited grounds (race, religion, gender, disability, etc.); or (B) "adversely affects the worker's psychological or physical well-being" and could reasonably "cause a worker to be humiliated or intimidated". Definition (B) expressly excludes "any reasonable action" by an employer "relating to the management and direction of the employer's workers or the work site", apparently recognizing that management styles may legitimately include elements that, in other contexts, could constitute harassment. Discriminatory harassment (definition (A)) cannot be excused on this basis. Under the proposed legislation, workers would be prohibited from harassing or "participating in the harassment of" other workers and employers would be responsible for ensuring that their workers are not exposed to employment-related harassment. Contravention of these responsibilities would trigger the penalty provisions in the OHS Act. Under these provisions, an OHS officer investigating a harassment complaint could have discretion to impose an administrative penalty of up to $10,000 for each day the harassment continues. Employers would also be required to establish and administer a workplace harassment policy and investigate harassment complaints. A worker who is dissatisfied with the employer's investigation would have the option of filing a complaint with an OHS officer for investigation and mediation. The results of this investigation would be subject to administrative review and appeal to the courts.
For the original version including any supplementary images or video, visit http://www.lexology.com/library/detail.aspx?g=14fb0ee7-5e1b-40db-99e5-a3f769d36f85