There is more and more discussion today about harassment and
bullying in the workplace. This has led to assertions of harassment
and bullying in situations even where the claims are unwarranted.
Discipline is one of the most frequent areas where we see claims of
harassment from employees - employees claim that they are being
harassed but managers feel they are simply doing their job.
Problems arise because workplace harassment is a serious and
legitimate topic, but employees sometimes allege they have been
"harassed" because they are receiving negative
The development of the law surrounding harassment has not
changed the fact that employers are still allowed to discipline
employees. Discipline is not a pleasant part of the relationship
– for the employee or the employer – but that does not
mean that it is harassment. Where the manager is acting
appropriately and respectfully, there is no harassment.
Importantly, adjudicators have confirmed that just because the
situation is uncomfortable or there are unpleasant consequences for
the employee, it does not equate to harassment.
The frequently cited definition for workplace harassment is
"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". Discipline can become harassment when
it strays into this territory, for example, where the discipline is
vindictive, cruel, or demeaning. However, the majority of
discipline does not fall into the category of
"harassment". Correcting problem behavior, providing a
negative performance review, or telling an employee that he or she
is falling below expectations would not usually be harassment but,
instead, would be a normal function of the managerial
Amodeo v. Craiglee Nursing Home provides some examples
of alleged harassment where the conduct was merely disciplinary in
nature. For example, the employee was repeatedly reminded that she
must document all discussions with residents' families. This
was found to be a normal reminder of the expectations of the
employee. Another allegation of harassment was based on the
employee being told that she would have to work more hours if she
could not keep up with completion of resident assessments, a
required part of her job. The employee thought this was an
impossible work demand. The Board found that, while some of the
comments made towards the employee were blunt and unflattering,
they were part of the manager's role in disciplining employees
who were failing to meet expectations.
What does this mean for Employers? While harassment is a serious
matter, not every unpleasant situation for an employee is
harassment. Employers can and should continue to discipline
employees for problematic behavior. Where an employee claims they
have been harassed, the employer should investigate the matter to
ensure that the discipline was appropriate and the message was
conveyed in a respectful manner. If such is the case, the employee
should be reminded, respectfully, of the difference between being
harassed and being asked to do her job.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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