Ontario restaurants were the worst offenders following the implementation of the country’s toughest anti-harassment law, which for the first time included requirements to investigate sexual harassment complaints.
More than 3,500 employers were cited for labour violations by provincial inspectors over an 18-month period ending in January, 2017, according to Ministry of Labour data obtained through a Freedom of Information request. Up to now, however, no prosecutions have been initiated under harassment-related laws, ministry spokeswoman Janet Deline said. Instead, employers have been given deadlines to comply with the law.
Enacted in September, 2016, the Sexual Violence and Harassment Action Plan Act expanded the definition of workplace harassment to include sexual harassment and made it mandatory for employers to investigate all harassment complaints – a first in Canada.
Ontario’s harassment laws require, among other measures, that employers have written harassment policies that workers are aware of, that they review those policies annually, investigate complaints and ensure the results of those probes are communicated with affected employees.
The Globe and Mail’s analysis shows that 3,563 Ontario employers violated all harassment-related laws from September, 2016, to January, 2018, the most recent period for which data is available. Those employers were cited for 7,800 instances of failing to follow the law.
Of the total violations, 16 per cent were for failing to have a written policy, which legal experts consider key to preventing harassment, and 22 per cent were for failing to have a written program laying out how workers can report harassment. These were the two most-violated sections of the law, followed by the requirement to investigate all harassment complaints.
The Globe’s analysis found harassment violations at restaurants far outpacing all other types of workplaces. Full-service restaurants accumulated 704 violations, while fast-food restaurants racked up 628.
Some labour experts contend the new law still allows big chains to offload responsibility for workplace harassment onto franchise owners.
According to the law, the franchise owner is the direct employer, which means the parent company is not legally responsible for responding to harassment complaints. But offloading responsibility onto franchisees may not be a smart move in the long run, said Stuart Ducoffe, a lawyer and founder of E2R Solutions, a human resources and employment law firm.
From a reputational perspective, he said it’s “in the franchisor’s interests to ensure its franchisees are doing what they need to do to educate and train their employees with respect to harassment and making sure they have the policies in place.”
Tim Hortons led the way with 122 violations at franchise locations, the most of any employer in Ontario.
This includes 24 violations for failing to review harassment policies at least once every year, 20 reprimands for not appropriately investigating harassment complaints and 17 for not having a policy that sets out how accusers and alleged harassers will be informed of the results of an investigation. Tim Hortons was also cited 11 times for not having procedures in place for workers to report incidents of harassment when the alleged harasser is their employer or supervisor.
Restaurant Brands International, the parent company of Tim Hortons, said it works hard with franchises to establish positive and safe work environments at their restaurants.
“Tim Hortons has zero tolerance for any type of harassment in the workplace,” spokesperson Devinder Lamsar said, adding that all franchisees are required to establish their own polices addressing workplace harassment.
A spokesperson for McDonald’s, whose Ontario locations were flagged for 39 violations of the province’s workplace-harassment rules, said “franchise businesses are like any other business in that they have to follow the law.”
A young, vulnerable work force, lack of job security and a culture of perceived impunity for harassers all contribute to the scale of the problem in restaurants, said labour activist Véronique Prévost, an organizer with labour union Unifor and Order’s Up, an initiative aimed at fighting harassment in Ottawa restaurants.
Gendered roles in the industry also compound the problem, she added, noting that while wait staff are primarily women, owners and managers are mostly men. “This plays into a huge power dynamic.”
The government’s violations data does not distinguish between sexual harassment and other forms of workplace harassment. But there has been a striking rise in complaints since sexual harassment was explicitly added to Ontario’s definition of workplace harassment in 2016.
According to figures provided by the ministry, complaints almost doubled in the fiscal year that the change took effect, rising to 1,986 in 2016-17 from 1,060 the year earlier. The fiscal year after that they climbed again, to more than 3,000, representing a three-fold increase in less than two years.
Provincial guidelines for investigations state they should be completed within 90 days, be conducted by someone not involved in the incident and involve interviews with the complainant, the accused person and any witnesses.
And the province puts the onus on employers to define workplace harassment and sexual harassment in a written document posted in the workplace. A sample policy posted to the Ministry of Labour’s website runs about 375 words in length.
The province employs several hundred labour inspectors who conduct random workplace inspections along with investigating employee complaints. The government also has a dedicated harassment enforcement team of 40 inspectors trained to “investigate particularly complex cases, including cases of alleged sexual violence,” Ms. Deline said.
The Ministry of Labour has the power to prosecute employers for violations and, if convicted, a judge can impose fines of up to $100,000 against an individual or $1.5-million against a corporation.
Some provinces have followed Ontario’s lead in adding sexual harassment to their harassment laws, although changes to their labour rules don’t go as far.
In Alberta, employers are now required to investigate all harassment allegations, but how to do so is left up to employers. In Quebec and New Brunswick, workplace safety laws were updated last year to explicitly cover sexual harassment, but the provinces do not require investigations into all complaints.
One woman’s complaint
Kati Sainte made a sexual-harassment complaint against her former boss and franchise owner at a Second Cup coffee shop in the Ottawa area that she worked at between November, 2017, and March, 2018. But Ms. Sainte said she didn’t complain to the Ministry of Labour about sexual harassment because she was unaware that Ontario’s occupational health and safety laws contained specific harassment protections.
Ms. Sainte, 17, alleges the franchise owner often touched her unnecessarily while they passed each other behind the counter. Other times, she alleged, he took advantage of a security camera blind spot in a storage room to get physically close to her and make comments about her body.
On those days, “I just wanted the shift to be over as soon as possible,” she said.
The Globe spoke with a former co-worker of Ms. Sainte who recalled her describing similar incidents while they both worked at the coffee shop. Ms. Sainte said other co-workers had similar experiences with the owner and they confronted him about it. She alleges he laughed off their concerns. The franchise owner did not respond to The Globe’s requests for comment.
Ms. Sainte had previously complained to the Ministry of Labour about unpaid wages, but said she didn’t complain about sexual harassment because she was unaware that Ontario’s occupational health and safety laws contained specific harassment protections.
The workers did take their complaint to the company, writing a letter to Second Cup’s head office in May, 2018.
In e-mail communications reviewed by The Globe, Second Cup’s vice-president of operations, Ted Tai, told the workers that the company took their concerns very seriously, but that it was not responsible for the actions of the franchise owner.
In a statement to The Globe, Mr. Tai said, “because Second Cup takes this kind of conduct so seriously, one of the things taught to every new franchisee before he or she begins carrying on business, is their legal obligations in these areas.”