There is more chatter, seemingly everywhere, about workplace harassment than about anything else in employment law.

Employees have developed the view that any perceived mistreatment is grounds for a claim against their employer. But in reality employees have had little legal protection against most forms of harassment.

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Until now, there has been little effective recourse for employees, despite the claims of the workplace investigation industry which attempts to convince employers to pay them $100,000 or more for their investigation when the employer’s liability generally runs from zero to much less than their fees.

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If the harassment is based on a ground covered by human rights legislation, such as gender, race, or disability, employees will have claims pursuant to human rights legislation. But the vast majority of claims do not relate to those few narrow grounds. “Human rights” seldom applies. Most often, the case is simply one of employers acting badly toward employees that they do not particularly like or that they consider indolent or inefficient.

The traditional recourse in responding to harassment is a constructive dismissal action. But that only applies if the harassment is so serious and repetitive that a court concludes that no reasonable employee should have had to put up with the behaviour and it therefore provides the employee with good cause to resign. Of course, if the employee (or their lawyer) gets it wrong, the employee will...

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