Defining Workplace “Harassment” – Another Decision

In Ontario’s Bill 168, “harassment” is defined as a course of “vexatious” (bothersome) comment or conduct that is unwelcome, or ought reasonably to be known to be unwelcome. But what does this mean in practice and how might it apply to your workplace? I wrote last summer about an arbitrator’s ruling that provided some guidance as to the law’s scope and application. That case focused on a nurse’s harassment of her co-workers. Here I summarize another relevant case, heard by the Labour Relations Board. This time the allegations were of harassment by a supervisor.

(I should note: Patrick Kelly, the vice-chair of the Labour Relations Board, made a number of rulings regarding this case. The latest one is here. Many of them have to do with jurisdictional issues. I have focused on his reasonings regarding harassment, and I have omitted and simplified the more technical (nerdy) legal issues. As regular readers of this blog already know, I am not a lawyer and none of this is meant as legal advice! If you are concerned about your rights in the workplace, contact your union representative or an employment lawyer.)

Background:  The applicant (I will call her “Jane”) had been employed as a social worker in a nursing home for about seven months when a new Administrator took over.  (I’ll call the new boss “Mary.”)

Allegations:  Jane alleged two incidents of harassment.  Mary told Jane several times that she was to document every conversation she had with a resident’s family members, for the purposes of any legal actions that might be brought against the Home.  Jane told Mary that she was having trouble keeping up with all of the necessary paperwork (the “Resident Assessment Protocols”).  Mary told her to work harder, and to put in extra hours if necessary, in order to finish everything on time.  She also said that Jane might face a suspension if she couldn’t complete her work on time.

In another incident, Jane alleged that the Home’s Director of Care yelled at her during a meeting to discuss a resident’s treatment plan.  Two days after the meeting she was given a written warning for failure to cooperate with the Director of Care.

After these two incidents, Jane wrote an email to a number of people in the senior management team, expressing concern that Mary did not have a good understanding of the social worker’s role.  She asks for “support” in dealing with Mary.  Shortly after this, Jane’s employment was terminated.

The Decision:  Mr. Kelly found that the two incidents Jane described did not constitute workplace harassment.  The second incident – where the Director of Care yelled at Jane in a meeting – was “rude” but not an example of harassment.  (If you remember from the definition, harassment is a “course” of vexatious conduct or comment, rather than a single incident.) 

What about Mary’s requests to Jane to document conversations with residents’ families and her threat that Jane would face termination if she could not finish her work on time?  Again, this does not fall under the definition of harassment, and Mary’s expectations of Jane were not unreasonable.  As Mr. Kelly put it, Mary “made a blunt, unflattering assessment of [Jane’s]  performance and demanded in no uncertain terms that she fulfill management’s work expectations or risk discipline.”  While acknowledging that Mary could have shown “greater tact and sensitivity,” Mr. Kelly stressed that sometimes the exercise of management has negative consequences for workers, but that does not make it harassment.

Lessons for Employees:  Try to work things out with your boss before going over his or her head.  If you do go over your boss’s head, don’t be surprised if senior management sees things differently than you do.

Lessons for Employers:  While the actions I have described here may not fall under the legal definition of harassment, they are not good management practices either.  I suspect that these incidents and the resulting appeal to the Labour Relations Board were bad for morale and an irritation for management.

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.