Irecently investigated a case where I needed to assess whether the discriminatory conduct that I found contributed to a poisoned work environment (PWE). This topic was previously explored by RT in a blog post1, but I felt it was time for a more recent and in-depth look. I realized that, not only was the workplace policy definition that I was asked to apply for PWE unhelpfully vague, but there was also no explicit definition in the Ontario Health and Safety Act (OHSA) either (most likely the reason for the policy's vagueness in the first place).
Fortunately, I looked to other sources and found several definitions, which when read together, help provide further guidance on what a PWE is:
Definitions:
- A poisoned work environment refers to a workplace in which comments or behaviours create a hostile or offensive environment for individuals or groups and negatively affects communication and productivity. These activities (e.g., yelling at no one in particular, pounding a desk in frustration) are not necessarily directed at anyone in particular.2
- A poisoned environment is a form of discrimination and can arise from even a single incident. It may be created by the comments or actions of any person, regardless of his or her status. The comments or conduct do not have to be directed at a particular individual.3
- A poisoned work environment can be created in two circumstances: (i) if there has been a particularly egregious stand-alone incident or comment, or (ii) if there has been serious wrongful behaviour sufficient to create a hostile or intolerable environment that is persistent and repeated.4
- ... There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created. ... Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.5
- In determining whether a poisoned work environment exists, relevant factors include: the number of comments or incidents, their nature, their seriousness, and whether taken together, it had become a condition of the applicant's employment that she or he must endure discriminatory conduct and comments.6
Earlier this year, the Human Rights Tribunal recently considered whether a PWE was created in Matheus v. McCann 2023 HRTO 77, where the applicant claimed they were harassed and discriminated against by the owner of the business for being a highly educated person from Ecuador. The applicant was also terminated two weeks after writing a letter to the owner asking for the harassment to stop.
The Tribunal found that the respondent made discriminatory harassing comments over no more than five months, indicating that they were regular occurrences. These comments impugned the character of Ecuadorians and their attitude towards work, their competence, and the competence of young workers. In addition to this, the employer was persistent in making the applicant feel hurtful, which had effect of undermining the status and feelings of self-worth for the individual, which the Tribunal considered serious in nature. The Tribunal also noted that, as a result of the persistent and repeated nature of the comments, it resulted in becoming a condition of the applicant's employment. For these reasons and relying on the factors laid out in George7, the Tribunal found that the discriminatory, harassing comments constituted a poisoned work environment.
In terms of remedies, in McCann, the Tribunal considered the seriousness of the violations of the Code and their impact on the applicant's dignity, feelings and self-respect and awarded the applicant $20,000 in damages.
Also in 2023, an employee grieved their termination after an investigation found that they had committed acts of serious misconduct. In that case8, the grievor was a male chief steward of a company that employed over 1000 employees. The arbitrator found that the grievor upset a supervisor by angrily yelling, insulting him and pursuing him to the point where the supervisor began to shake. This is because the grievor accused the supervisor of performing bargaining unit work. The arbitrator considered this as a serious single incident.
The Arbitrator also made findings about allegations of harassment coming from his female counterpart (a complainant) and other women in the workplace. They discussed a pattern of behaviour that was directed at women which was regarded as offensive, intimidating, loud and bullying in nature. The Arbitrator also accepted that there was an instance of unwanted touching by the grievor against a former female shop steward.
It was found that the grievor's insulting language was mostly a gender-based personal attack occurring specifically when the grievor confronted the women in person or at their workstations. This led the Arbitrator to conclude that the entire workplace was poisoned. The Arbitrator mentioned that, while some of the behaviour occurred in the Union office, this did not exempt the company from notice and action.
The Arbitrator concluded that the unwanted touching and disrespectful comments made to the former shop steward had a continuing impact on his coworkers (male and female), who watched him humiliate her and they all felt the impact of his behaviour. There was evidence from multiple witnesses and the complainant of their consistent reflection that he succeeded in intimidation and of their reluctance of being exposed to him in the workplace. The Arbitrator noted the impact of the grievor's behaviours on those in the workplace, citing repeated reports of people being upset, crying, made to feel "cheap", embarrassed, humiliated, and at least one considering quitting her job.
The Arbitrator found that the company failed to apply progressive discipline despite having multiple opportunities, and therefore the grievor's discharge could not be upheld. However, because the grievor was the one who created a poisoned work environment, they were denied a remedy of being reinstated.
Here are some takeaways for investigators and employers when they are considering a PWE complaint:
- The existence of a PWE is a factor in remedy considerations. Returning a person back into the workplace is more challenging in these cases. Also, if the employer contributed to a PWE, then potentially a higher number of damages is payable to the individual affected.
- A PWE is more easily found in cases where the conduct is persistent and repeated, though a stand-alone incident may be sufficient if the conduct is particularly egregious
- While harassment contains both a subjective and objective component, a PWE appears to be from the perspective of the objective, reasonable bystander only, suggesting a higher threshold test.9
Footnotes
1. https://rubinthomlinson.com/poisoned-work-environment-employers-responsibility/
4. https://www.canlii.org/en/on/onhrt/doc/2020/2020hrto574/2020hrto574.html#_Toc44342216
5. Crêpe it Up! v. Hamilton, 2014 ONSC 6721 at paras. 18-19.
6. Crêpe it Up! v. Hamilton, above, at para. 19 and George v. 1735475 Ontario Limited, 2017 HRTO 761 at para. 58 ("George").
7. George v. 1735475 Ontario Limited, 2017 HRTO 761.
8. Gate Gourmet Canada Inc. v Teamsters Local Union No. 647, 2023 CanLII 83442 (ON LA).
9. McDonald v. CAA South Central Ontario, 2018 HRTO 163 (CanLII) at para 172
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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