One of my recent Canadian HR Law blog posts discusses the hot topic of harassment and bullying in the workplace – a topic that we routinely caution employers to be mindful of so they do not expose themselves to liability.
With increased media attention to the issue of harassment, more employees are aware of their rights and taking steps to enforce them. That is a positive development.
Unfortunately, the widespread discussion of harassment also means that some people misinterpret “harassment” and conclude that any negative interaction will be grounds for legal action. We have seen a noticeable increase in the number of allegations of workplace harassment in recent years, along with an increase in the number of false allegations, either deliberate or unintentional.
It is important to remember employers are still entitled to manage employees and impose discipline, as well as to offer constructive criticism, without being accused of harassment or bullying. Unfortunately, many employees either mistakenly believe such interactions constitute harassment, or deliberately mischaracterize such incidents as harassment in order to put themselves in a stronger legal position, particularly when they fear their job is at risk.
What Do the Courts Say?
There have been several cases over the years that have considered the definition of harassment and whether it would apply to disciplinary action or other legitimate exercises of management authority. This includes the Ontario Labour Relations Board decision in Amodeo v. Craiglee Nursing Home Ltd., in which the board confirmed that disciplinary actions, including warnings, do not constitute harassment. In that case, the employee was failing to follow established policies, and was repeatedly reminded of the expectations. This was not found to be harassment.
Protection from harassment and bullying has expanded significantly in recent years. Previously, harassment was not actionable unless it was based on a protected ground pursuant to human rights legislation. The common law evolved to find harassment could constitute constructive dismissal, and then legislation was adapted to incorporate prohibitions on harassment even if it was not based on a ground otherwise protected by human rights legislation.
Employees enjoy greater protection from bullying and harassment than they ever have, but employers are still entitled to manage and discipline employees. Furthermore, employers are not required to be nice. Being blunt, direct or even uncivil is not bullying.
Unfortunately, many employers, managers and supervisors live in fear of allegations of harassment and bullying, and refrain from properly managing their employees as a result.
Like many other aspects of employment law, this can be addressed through proper documentation. If all interactions are documented properly, there will be less likelihood the employee will allege the interaction was inappropriate. Furthermore, it is important that managers and supervisors be trained with respect to managing performance and imposing discipline, so they understand their rights as well as their obligations. We can help employers understand how to create a healthy and positive environment, and proactively manage their HR obligations. There is a big difference between managing and bullying, though unfortunately the lines have become blurred. Employees feeling that their employers are crossing this line are encouraged to contact us in order to understand their rights and obtain clarification where necessary.
by Stuart Rudner