Is it excluding employees from speaking at a meeting,
criticizing for chewing gum and not saying good morning? Or does it
include encouraging an employee to apply for another job, sharing
anecdotes with an employee and valuing an employee's
This case serves as a reminder that an employee who complains
about behaviour that is within the realm of reasonable conduct will
be unable to make a claim of harassment; regardless of the effect
that behaviour might have had on the employee.
The grievor was a full time employee of the employer since 1989.
The grievor started off with the employer as a Clerk/Typist, then
as a Programme Consultant and was then appointed as a Chair's
Assistant in 2002.
The grievor alleged that in her 7 years of employment as the
Chair's Assistant to the Chair of Lawrence Kinlin School of
Business ("the School"), she was harassed and bullied by
Ms. Pierce, the Chair of the School, contrary to the collective
agreement and the Human Rights Code.
The grievor alleged that she experienced negative behaviour
towards her which led to an unbearable level of stress, forcing the
grievor to take a sick leave. After returning from her sick leave,
she transferred to another low-paying position with the employer,
in order to remove herself from the hostile environment.
Before making a formal complaint in January 2014, the grievor
had submitted an informal complaint under the employer's policy
against the Chair, Ms. Pierce.
Some of the grievor's complaints alleged that Ms. Pierce
failed to greet the grievor in the morning, criticized her for
chewing gum and objecting over grievor's suggestions. The
grievor further alleged that Ms. Pierce's behaviour towards her
made her feel undervalued and incompetent.
The employer did not challenge most of the facts relied upon by
the union, but disputed the grievor's characterization of her
relationship with Ms. Pierce. Ms. Pierce explained her busy and
dynamic position. She further expressed no complaints about the
grievor's behaviour or her performance.
With the employer's business expanding, the workload on the
grievor increased. Upon the grievor expressing this concern to Ms.
Pierce, she was relieved of her payroll responsibilities for a
couple of years but had to resume for a year because of change in
personnel. Further, Ms. Pierce also took interest in the
grievor's career and encouraged her to pursue promising career
From the grievor's perspective, Ms. Pierce's behaviour
might be objectionable. However, none of this behaviour, viewed
objectively, could support a finding of harassment or bullying.
The Arbitrator reasoned that a departure from reasonable conduct
is a prerequisite for a finding of harassment. Drawing on previous
decisions, the Arbitrator concluded that "an employee who
complains about behaviour that is within the reasonable conduct
will be unable to satisfy an arbitrator that there has been
harassment, regardless of the effect that behaviour might have had
on the employee".
The grievor failed to show that any of the alleged conduct
resulted from animosity towards her by Ms. Pierce or that she was
singled out in some way. It was noted that the grievor worked in an
organization that was undergoing rapid growth and it was
foreseeable that some employees might find a faced paced and
rapidly changing environment to be stressful. However, Ms.
Pierce's general conduct and expectations at work were not so
egregious as to constitute it as being unreasonable.
Looking at the evidence as a whole, the alleged complaints of
the grievor, viewed as individual incidents or patterns did not
warrant a finding of unreasonable conduct resulting in harassment.
Although this case clarifies that not all behaviour of the employer
will be deemed inappropriate, employers need to recognize that
certain conduct can still resulting in a finding of harassment.
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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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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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