It has become standard in Ontario for human resources professionals to operate from the premise that when an allegation of harassment is made in the workplace, an independent investigation is required. The Occupational Health and Safety Act ("OHSA") imposes obligations on employers when it comes to harassment, including the duty to ensure an appropriate investigation is conducted. An independent investigation is often the way employers satisfy their obligations under the OHSA.
As workplace harassment investigations become more and more common, it is important to reflect on what exactly workplace harassment means. The OHSA defines harassment as "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." Many workplaces have adopted this definition in their harassment policies.
Recent decisions from arbitrators concerning harassment allegations provide further clarification on what is and is not harassment. From reading these cases, we can identify several defining principles.
First, the term "workplace harassment" should be used seriously and applied vigorously so as not to trivialize, cheapen, or devalue its use. Allegations of harassment should be considered carefully based on all of the facts and circumstances of each case.
Second, workplace harassment should generally not be used to describe conduct where there is no intent to be harmful in any way unless there has been a "heedless disregard" for others. Generally, the word "vexatious" refers to conduct that has no "bona fide purposes other than to cause annoyance, frustration, and/or worry."
Third, workplace harassment is distinct from workplace tension. Not all conduct that has the effect of causing negative feelings and reactions will rise to the level of harassment.
Fourth, workplace harassment is not determinatively established by either the intention of the alleged harasser or the emotional impact felt by the victim. Both are relevant considerations within the broader factual matrix. It is possible that even where a victim sincerely feels deeply offended by workplace conduct, that conduct may not constitute harassment.
Finally, reasonable exercises of supervisory or managerial authority, whether disciplinary or otherwise, do not generally constitute harassment when they are made in good faith.
Obviously, each case will turn on its own facts, but it is important that each of these principles be applied scrupulously to the evidence before the investigator. This ensures that a finding is not made based on subjective feeling or intent. Rather, the principles set out above work as guidelines to help establish a sound factual basis to protect everyone's rights and create the conditions to foster a safe, inclusive and collaborative workplace culture.
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.