How to Know the Difference
By Ozlem Yucel
In a recent research study by Forum Research, 55 per cent of Canadians reported having experienced or witnessed bullying at work. In many cases, the perpetrators of this bullying are managers.
However, conduct that is perceived as bullying falls on a wide spectrum. Sometimes, workers characterize behaviour as “bullying” when it is not. So, how are human resources professionals to tell the difference between what is and isn’t bullying? This article seeks to provide an overview of the law surrounding bullying and harassment and, in reviewing the law, assist readers to understand when conduct by a manager may be crossing the line from the proper exercise of authority to bullying behaviour.
Overview of the law
Employers have a legal obligation to not only prevent bullying and harassment from occurring in the workplace, but they also have an obligation to address it when it occurs. Under Ontario’s Occupational Health and Safety Act (OHSA), employers are required to prepare, review and post policies concerning workplace harassment, have a program in place to implement that policy and ensure all incidents are appropriately investigated. Under Ontario’s Human Rights Code (the Code), employees also have a right to be free from harassment in the workplace because of grounds protected under the Code (such as age, disability, race, etc.).
What is harassment?
Under both OHSA and the Code, harassment is defined as, “a course of vexatious comment or conduct against a worker in a workplace which is known or ought reasonably to be known to be unwelcome.” While this definition refers to a course of conduct, a single occurrence, if sufficiently vexatious, can also constitute harassment. The word “vexatious” has been defined to mean behaviour that is “annoying, distressing, agitating,” and, “worrisome, discomfiting or demeaning” to the complainant.
To establish that behaviour is “unwelcome,” it is not necessary for the complainant to object. The case law recognizes that, given the power imbalance in the employment relationship, employees may not feel comfortable objecting to unwelcome behaviour. Where complainants have not raised an objection, determining whether impugned behaviour is “unwelcome” will involve assessing whether the respondent ought to have known that their behaviour was unwelcome. This analysis will turn on whether a reasonable person in the complainant’s position would find such conduct to be unwelcome, and if so, whether a reasonable person in the respondents’ position would know that to be the case.
The test for harassment is, therefore, primarily an objective one. If the respondent’s behaviour is known or ought reasonably to be known to be offensive, it is harassment. On the other hand, if a reasonable person would see the behaviour as benign, the very sensitive complainant may not be considered the victim of harassment.
What is not harassment?
Under OHSA, the definition of workplace harassment excludes “reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace.” What constitutes “reasonable action” will depend on the facts of each case. In general, the proper exercise of authority related to the provision of advice, assignment of work, counselling, performance evaluation, discipline and supervisory functions has generally been found to not constitute harassment. An employer is entitled to be critical of unsatisfactory work by an employee and, in general, to take measures, disciplinary or otherwise, that it believes appropriate.
Case law examples
Below are examples of cases where harassment was not found:
- A worker who was dissatisfied with two negative performance appraisals accused his supervisors of bullying. The arbitrator dismissed the complaint and found that no harassment occurred on the grounds that the supervisors’ criticisms were “legitimate” and expressed appropriately.
- A manager’s repeated reminders about work expectations and requests that an employee work harder or put in additional time were deemed to not constitute harassment. At most, the manager made blunt, unflattering assessments of the employee’s performance and ultimately reasonable demands that she fulfill work expectations or risk discipline.
These cases stand for the general principle that workplace harassment protections do not normally apply to management’s reasonable supervision of their employees, even if in the course of carrying out that supervisory function a worker suffers unpleasant consequences.
However, harassment will be found where a manager’s conduct goes beyond the scope of their reasonable exercise of authority. In the case of University Health Network v OPSEU, 2010 CarswellOnt 834 (Ont Arb) at 139, an arbitrator set out the following examples of bullying behaviour:
Persistently picking on individuals either in public or in private or shouting at staff.
Punishing employees by removing responsibilities for minor infractions or giving trivial tasks to employees.
Overloading an individual with work and reducing time frames to complete the work.
Acting towards employees with a condescending attitude.
Demeaning, belittling or harassing other employees.
Spreading rumours, gossiping about or damaging a co-worker’s reputation.
Issuing hostile and threatening emails or inaccurate memos about an employee.
Threatening a person’s job security.
Practical jokes that offend individuals.
Unwelcome remarks, slurs, jokes, taunts or suggestions about a person’s race, colour, place of origin, religion, age, marital status, family status, disability, gender or sexual orientation and background.
Written or verbal abuse or threats.
Conclusion
The case law pertaining to bullying and harassment recognizes that an employer has some latitude to manage its operations and workforce. However, when the employer’s behaviour exceeds the scope of the reasonable exercise of managerial authority, a finding of harassment may be made. In all cases, employers should treat complaints of bullying seriously and conduct an appropriate investigation. Hopefully, the information in this article will assist human resources professionals in conducting investigations and putting in place training and other measures to prevent it from occurring in the first place.
Ozlem Yucel is an associate at TurnpenneyMilne LLP. Attend Krista Siedlak of TurnpenneyMilne LLP’s presentations, “Bad Boss or Bully? How to Know the Difference and What to Do About It,” on Feb. 1 at 10 a.m. and, “#AfterMeToo: What Does this Mean for Your Company?” on Feb. 1 at noon.