Blunt and unflattering does not constitute “harassment”
As of June 2010, the Ontario Occupational Health and Safety Act requires employers to have written policies and programs that assess the risks and prevent workplace violence and harassment. Amongst other provisions, the policies must allow workers to remove themselves from harmful situations if they have reason to believe that they are at risk of danger or fall prey to harassment.
Who could argue with legislation designed to serve such a noble purpose? Right?
Anecdotal experience suggests that sometimes the occasional employee calls foul and unjustifiably accuses their supervisor of harassment when confronted with a poor performance review or progressive discipline. Imagine!
Here is a reprint from "Workplace Wire" published on-line by Heenan Blaikie LLP and posted by Julie-Anne Cardinal describing a recent Ontario Labour Board case where the Board held that “…sometimes the exercise of management functions results in unpleasant
consequences for workers. That does not necessarily translate into
workplace harassment.”
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Posted by Julie-Anne Cardinal on November 06, 2012
http://www.workplacewire.ca/olrb-helps-to-distinguish-workplace-harassment-from-performance-management/#page=1
OLRB helps to distinguish workplace "harassment" from performance management
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Heenan Blaikie LLP Julie-Anne C.L Cardinal November 6 2012
The Ontario Labour Relations Board (“OLRB”) recently provided some
much-needed guidance to employers on what managerial conduct will
constitute workplace harassment under the province’s Occupational Health and Safety Act (“OHSA”).In Amodeo v. Craiglee Nursing Home Limited, 2012 CanLII 53919, a social worker at a nursing home claimed to have been harassed and reprised against by the home’s new Administrator. The conduct complained of included shouting at meetings in front of co-workers, the issuance of writing warnings for sub-standard performance, and the imposition of “unrealistic workloads”, including attempts by the Administrator to impose stricter note-keeping requirements following interactions with patients. The Administrator was also alleged to have ordered the applicant to work harder and longer to get the job done. Ultimately, the social worker’s employment was terminated.
The OLRB dismissed the social worker’s reprisal complaint under s.50 of the OHSA, distinguishing between conduct that constitutes workplace harassment and that which can be characterized as performance management. The Board noted that workplace harassment is defined under the OHSA as the act of “engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonable to be known to be unwelcome.” Therefore, conduct that could constitute workplace harassment includes comments that demean, ridicule, intimidate or offend, bullying, or advances of a sexual nature. That kind of behavior must be distinguished from managerial conduct that otherwise falls within a manager’s normal work functions, even if the worker suffers unpleasant consequences.
The Board held: “…the reality is that sometimes the exercise of management functions results in unpleasant consequences for workers. That does not necessarily translate into workplace harassment.” In this case, while some of the Administrator’s conduct could be characterized as blunt and unflattering, it did not constitute “harassment”.
The worker’s reprisal allegation that she had been dismissed because she complained of harassment by the Administrator, contrary to s.50 of the OHSA, was dismissed.
This decision should assist workplace parties to differentiate between conduct that could give rise to harassment allegations under the Occupational Health and Safety Act or Ontario’s Human Rights Code, and that which forms a normal part of management of the workplace.
