We are now coming up on the three year anniversary of Bill 168, the Ontario legislation that imposed new duties on Ontario employers to address violence and harassment in the workplace. Most employers are now aware that harassment and bullying amongst employees is a serious issue, and that they need to take complaints seriously. However, employers often have difficulty determining whether a specific incident or series of incidents qualifies as harassment. This is particularly the case when an employee makes a complaint against his or her manager, and the employer is called upon to distinguish between “managing” and “harassing”. With that in mind, this post will summarize some of the commentary from the Ontario Labour Relations Board as to how to draw this line.
Shortly before Bill 168 was implemented, the Ministry of Labour prepared a guideline to assist employers with understanding their new obligations. That guideline included the following examples of what is not workplace harassment:
- Reasonable action or conduct by an employer, manager or supervisor that is part of his or her normal work function would not normally be considered workplace harassment. This is the case even if there are sometimes unpleasant consequences for a worker.
- Examples could include changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of dress codes and disciplinary action.
- Differences of opinion or minor disagreements between co-workers would also not generally be considered workplace harassment.
This description has generally been followed in the case law. For example:
- In Amodeo v. Craiglee Nursing Home Limited, the Vice-Chair noted that a manager’s “blunt, unflattering assessment of the applicant’s performance” and a demand “in no uncertain terms that she fulfil management’s work expectations or risk discipline” did not translate into workplace harassment. [The Vice-Chair did concede that, on the applicant’s version of events, the manager might have utilized greater tact and sensitivity.]
- In Parsons v. Simcoe County District School Board, the Vice-Chair found that an allegation that one employee “shouted” at another employee to turn off the lights was not harassment, but “[the] kind of problem that can and should be resolvable as between adult professionals”.
- In Conforti v. Investia Financial Services Inc., the Vice-Chair concluded that “no person acting reasonably” could have thought that emails from the Assistant Chief Compliance Officer to an employee advising him that he must comply with the organization’s rules and regulations amounted to harassment.
Notwithstanding the above, it is inevitable that situations will continue to occur where an employee complains that a manager’s behavior has crossed the line. Employers must ensure that they take these complaints seriously, and conduct an investigation as set out in their existing workplace violence and harassment policies and procedures.