Bullying isn't just a problem on the playground anymore.
Eventually, the bullies grow up and get jobs. Now, we're
hearing more and more about harassment in the workplace.
As an example, in June 2010 Ontario's Violence and
Harassment in the Workplace law came into effect. It requires
employers to develop policies to address violence and harassment in
the workplace and to implement procedures for employees to report
Other provinces, such as Saskatchewan and Manitoba have similar
laws. Quebec has for several years had a law prohibiting
"psychological harassment" in the workplace. That is
defined very broadly. The federal government of Canada also
requires anti-violence policies to be in place, but defines
violence for this purpose to include "bullying, teasing,
abusive or other aggressive behaviour..." (See earlier
editions of this publication, including,
"Ontario Follows Quebec and the Federal Sector with New
The key problem from the employer's perspective is that
"harassment" could encompass a wide range of behaviour.
So what exactly falls under the category of workplace harassment
for these legal purposes?
What Constitutes Workplace Harassment?
The new law in Ontario includes the following definition:
"workplace harassment" means engaging in a course of
vexatious comment or conduct against a worker in a workplace that
is known or ought reasonably to be known to be unwelcome
A few recent cases in the labour arbitration and human rights
contexts offer examples of conduct that might be considered to be
In International Union of Elevator Constructors,
Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., the
Ontario Labour Relations Board considered a grievance from an
employee who was let go for violating his employer's workplace
harassment policy. The conduct in question was a vulgar prank of a
sexual nature that took place in the employee lunchroom. It was
videotaped by fellow employees and posted on the internet. The
grievor claimed that the prank reflected an "all-male"
environment. He said that he had never seen the workplace
The dismissal was upheld. The Board ruled that even if the fired
employee was unaware of the harassment policy, and a number of his
fellow employees shared his enthusiasm for the prank, it was
patently unreasonable behaviour for the workplace.
The employer alleged that the employee was "spreading
negativity towards others", ignoring people and making them
feel 'invisible'. He was swearing under his breath. But the
only allegation the employer was able to prove was that the
employee would occasionally swear under his breath.
In the end, the arbitrator agreed with the employee that
swearing under one's breath did not offend the employer's
workplace harassment policy. But this was only because there
was no evidence that it was directed at others.
While the Saskatchewan case seem to involve an employer acting
on too little evidence, employers can still get in hot water for
not being responsive enough when harassment occurs. The
Ontario Human Rights Tribunal, in Farris v. Staubach Ontario Inc., dealt
with an employee who complained that her co-workers spread rumours
of a sexual nature about her and referred to her using offensive
remarks. She said that her employer was not responsive and
allowed a poisoned work environment to be created. The Tribunal
agreed, ordering the employer to pay her $30,000 for injury to
dignity, feelings and self-respect.
Employers Have to Take Preventative Steps
The three cases above show the sorts of issues and conduct that
employers might have to address in workplace harassment policies
that are now required by law in several provinces. Employers need
to assess the culture of their workplace and provide training to
employees and management at all levels. Management should identify
when 'joking around' is taken too far. They should address
it before it develops into harassment. Without such preventative
measures, employers can end up dealing with both complaints of
harassment and claims of unjust discipline.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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