What constitutes "the workplace"?

“Workplace” is defined in the Occupational Health and Safety Act (“the OHSA”) as “… any land, premises, location or thing at, upon, in or near which a worker works.” However, it is important for employers to understand that the concept of “workplace” extends to off-site, after-hours or online work functions including, holiday parties, work related events, training sessions, conferences, travel, social or company-sponsored events and social media groups, websites and/or forums, for example.

The definition encapsulated in the OHSA is defined in physical terms. However, if incidents occur off-site, after-hours or online, the alleged behaviour may still constitute workplace harassment if there is a sufficient connection to the workplace. For example, many employers allow employees to work remotely; which would be still be considered sufficiently connected to the workplace.

There are various circumstances that could establish a nexus between the alleged harassing behaviour and the workplace. For example, if an employee engaged in harassing behaviour after work hours while wearing a work uniform or if harassing behaviour occurs online in a Facebook Group for employees that is sponsored or condoned by the employer. Interestingly, an incident that is unrelated to the workplace but has an impact on the workplace could be considered within the realm of employment. A case by case assessment would be required to establish a sufficient nexus to the workplace.

Finally, it is important to note that an employer can be held liable not only for the actions of their employees at a holiday party or retirement celebration, for example, but for all guests in attendance.