The Ontario Labour Relations Board (“the Board”) has provided additional legal interpretation of workplace harassment under the Occupational Health and Safety Act (“OHSA”) in Amodeo v Craiglee Nursing Home Limited, 2012 CanLII 53919 (ON LRB), which was decided on September 19th, 2012. In drawing a clear distinction between “workplace harassment” and “legitimate management conduct”, the Board has provided some welcome direction on this sometimes contentious workplace issue.

Nature of the case

Marianne Amodeo (“Amodeo”) was employed as a social worker at a nursing home for a period of eight months. In her last month of employment a new Administrator was hired to run the home. A number of disagreements with the Administrator ultimately led to Amodeo’s dismissal. After her dismissal, Amodeo filed a claim with the Board under Section 50 of the OHSA (i.e., the employer reprisal provision) claiming that she had suffered workplace harassment at the hands of the Administrator.

Specifically, Amodeo claimed that she had been shouted at in a meeting and reprimanded for not working hard enough. Amodeo subsequently sent emails to senior management and was terminated shortly thereafter. Amodeo claimed that her termination was a form of reprisal as her employer believed that she might report resident abuse to the Ministry of Health and Long Term Care.

Definition of workplace harassment

Workplace harassment is defined in Section 1(1) of the OHSA 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.

Decision

The Board began by providing a list of examples of behaviours that, in its view, met the definition of workplace harassment, including, “comments or remarks that demean, ridicule, intimidate or offend; the display or circulation of offensive pictures or printed material; bullying; and of course, requests, suggestions or advances of a sexual nature”. In considering the difference between workplace harassment and legitimate management conduct, the Board found that:

The workplace harassment provisions do not normally apply to the conduct of a manager that falls within his or her normal work function, even if in the course of carrying out that function a worker suffers unpleasant consequences [emphasis added].

Amodeo claimed that she was shouted at by the Administrator in a meeting and reprimanded for not keeping up with resident treatment files. The Board found that if Amodeo was shouted at by the Administrator in a meeting, this did not, in and of itself, amount to vexatious conduct. In considering whether the Administrator’s repeated reminders to Amodeo to complete the relevant resident paperwork could amount to workplace harassment, the Board said:

That strikes me as a reasonable expectation that an employer of this kind might have of its professional staff. Ms. Amodeo did not provide particulars of the frequency of Ms. Heinz’s reminders. She did not claim, for example, that Ms. Heinz hounded her mercilessly. Accordingly, I find that, in the circumstances, this is not vexatious conduct [emphasis added].

Amodeo also claimed that the Administrator’s suggestion that she work harder and put in extra time was tantamount to workplace harassment as it was essentially a request for her to work “unlimited overtime to complete an impossible task”. The Board found that this characterization was unreasonable based on Amodeo’s own description of the incident. The Board stated:

The worst that can be said of what happened is that Ms. Heinz made a blunt, unflattering assessment of the applicant’s performance and demanded in no uncertain terms that she fulfil management’s work expectations or risk discipline. Arguably, Ms. Heinz might have utilized greater tact and sensitivity. But as I have stated, the reality is that sometimes the exercise of management functions – which is what Ms. Heinz was engaging in – results in unpleasant consequences for workers. That does not necessarily translate into workplace harassment. It does not in this case (emphasis added).

Other post-Bill 168 decisions

Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB), was decided on September 23rd, 2011, and the Board in that case found that two emails sent by different compliance personnel did not constitute workplace harassment. In a similar vein to the Amodeo case, the Board stated at paragraph 25:

Harassment is not the same as an employer…ensuring that rules are complied with.

In the more recent case of Culp v. Blue Line Transportation Ltd., 2012 CanLII 39197 (ON LRB), the Board heard from an employee, Yvonne Culp (“Culp”), who claimed that her supervisor and manager were persistently rude and unfair to her during multiple interactions (i.e., meetings and e-mail exchanges) about her job performance. With respect to the email communications sent by the employer the Board stated at paragraph 4:

Harassment is not the same as an employer (or employees responsible for ensuring that other employees comply with rules and regulations) ensuring that rules are complied with. No person acting reasonably could have thought the two emails amounted to harassment.

Is it workplace harassment or legitimate management conduct?

While the above-referenced case decisions help to distinguish between workplace harassment and legitimate management conduct in a broad sense, it is all-too-commonly the case that employers and employees hold starkly opposing views on what constitutes one versus the other. In its legal interpretation guide to the workplace violence and harassment provisions under the OHSA, ‘Workplace Violence and Harassment: Understanding the Law’, Ontario’s Ministry of Labour (2010: 3) characterizes the nature of workplace harassment in the following terms:

Workplace harassment can involve unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating or demeaning to a worker or group of workers. It can also include behavior that intimidates, isolates or even discriminates against the targeted individual(s).

It is easy to see how both employers and employees could interpret the above characterization quite differently. To an aggrieved employee, management conduct that “offends, embarrasses or humiliates” the employee can be regarded as workplace harassment based on a plain reading of the Ministry of Labour’s 2010 legal interpretation guide. To the employer, the same management conduct can be viewed as a legitimate and proper exercise of managerial authority despite the fact that the employee is left feeling offended, embarrassed or humiliated.

In the absence of clear guidance from the regulatory authority and with only general precedents set within relevant case law, it is usually left to the employer to educate employees on the difference between legitimate management conduct on the one hand, and workplace harassment on the other. Unfortunately, for whatever the reason, it is rarely the case that employees are provided with clear guidance to aid them in analyzing actual workplace situations.

Educating employees about workplace harassment

There is good reason to believe that providing employees with tools to evaluate potential harassment will not only lead to a more informed workforce, but will also reduce the total number of workplace harassment complaints and grievances. An excellent example of such an evaluation tool has been developed by the Treasury Board of Canada Secretariat (“TBCS”) in the form of a web-based employee toolkit entitled, ‘Is It Harassment? A Tool To Guide Employees’ (the “TBCS Toolkit”).

The introduction to the TBCS Toolkit sets out its purpose and objectives:

This tool will serve to help you in the analysis of a situation you believe might be workplace harassment. This tool can be used as a starting point in your analysis to help you better understand what harassment is and is not. It is to be used solely as a guide to assist you in reflecting on the circumstances of your situation.

The TBCS Toolkit provides a definition of workplace harassment and describes in some detail what does and does not constitute harassment. Prominently displayed near the beginning of the website it is noted that, “The legitimate and proper exercise of management’s authority or responsibility does not constitute harassment”.

A number of examples of conduct that constitutes workplace harassment are identified in the TBCS Toolkit, including:

• Preventing a person from expressing himself or herself: yelling at the person; threatening; constantly interrupting that person; prohibiting the person from speaking to others
• Discrediting the person by spreading malicious gossip or rumours, ridiculing him/her, humiliating him/her, calling into question his/her convictions or his/her private life, shouting abuse at him/her
• Compelling the person to perform tasks that are inferior to his/her competencies that demean or belittle him/her, setting the person up for failure, name calling in private or in front of others
• Isolating the person by no longer talking to him or her, denying or ignoring his or her presence, distancing him or her from others

Of equal importance, the TBCS Toolkit also lists a number of behaviours that DO NOT constitute workplace harassment, including:

• Normal exercise of management’s right to manage such as the day-to-day management of operations, performance at work or absenteeism, the assignment of tasks, reference checks, and the application of progressive discipline, up to and including termination, constitute the legitimate exercise of management’s authority
• Work related stress in itself does not constitute harassment, but the accumulation of stress factors may increase the risk of harassment
• Difficult conditions of employment, professional constraints, and organizational changes

Taken as a whole, the TBCS Toolkit and similar employee resource guides offer a number of tangible benefits to employers. Created and positioned properly, this type of toolkit can reduce confusion, lower complaint levels and foster “common ground” understanding between employees and management.

Similar toolkits designed for management and supervisory staff are being used successfully by a number of employers to help managers in preventing and responding to workplace harassment. The TBCS managers toolkit, ‘Dealing With Harassment’ is an excellent example of a resource guide designed to support managers in promoting a respectful workplace and resolving conflict constructively.

Summary

The Amodeo case, coupled with other recent arbitral decisions, offer general insights into the legal delineation between workplace harassment and the exercise of legitimate management authority under the OHSA. In the absence of more definitive guidance within case law and with little direction from the regulatory authority, many employers struggle to educate employees on the one hand, and avoid excessive and at times misguided workplace harassment complaints on the other.

There is substantial reason to believe that educating and providing tools to employees to analyze potential workplace harassment behaviour offers tangible benefits to both employers and employees. One approach used by some employers is an employee toolkit to aid in the analysis of situations the employee believes may constitute workplace harassment. Such a toolkit can bring management and employees to a shared understanding of acceptable and unacceptable behaviour in the workplace leading to less harassment complaints and grievances.

David Hyde, M.Sc., CPC
David Hyde and Associates