Bill 168 – Investigating Complaints under your Policy

OK.  You have a policy about violence and harassment in the workplace.  You’ve got a program in place to implement the policy and to make employees aware of it.  Now someone has made a complaint under the policy.  What are your next steps?

With any luck, the policy will have been written so that your next steps are already laid out.  The complaint will have to be investigated, and based on the investigation, some remedy may be called for.  The investigator will speak to the person who has made the complaint (“the complainant” ) and to the accused person (“the respondent”).  After each interview, the investigator will draw up a statement for each party, which they will sign.  The investigator may also speak to witnesses and have them sign statements as well.  Finally, the investigator will study your policy, and then determine whether the behaviour in question constitutes a violation of it or not.  The investigator’s decision will be in the form of a written report.  The report is delivered to whomever is in charge of sanctions under the policy.  The investigator may be a supervisor, someone from the Human Resources team, or an outside party.  (I offer investigations through my company Principled Dispute Resolution and Consulting.)

An example might be useful here:  Mike is an employee, and Mary is his immediate supervisor.  After learning about the sections of the policy regarding harassment, Mike makes a complaint that Mary has, on several instances, made negative, hurtful, and belittling comments about his recently acquired tattoos.  Some of these remarks were made in private, but some were in the presence of his co-workers Sam and Jill.  The investigator interviews Mike, asking him to describe these incidents.  Based on the interview, the investigator writes up a statement.  Mike reviews it and signs, or asks the investigator to make changes before he will sign.  Next the investigator interviews Mary, to get her perspective on the incidents in question.  Again, the interviewer draws up a statement for Mary’s approval and signature.  Depending on what Mary has said, (“I did make the comments and I’m very sorry,” or “I respectfully asked Mike to observe our dress code and never belittled him”) the investigator may interview Sam and Jill about the incidents that they witnessed, and draw up statements for them.  Finally, the investigator studies the workplace policy on harassment in light of the relevant legislation (in Ontario that means Bill 168). and makes a decision about whether Mary’s behaviour is in violation of the policy.  (Your policy might be stricter than the relevant legislation, but it cannot be weaker.)

What happens after the report is submitted?  Again, your policy should describe the possible sanctions or consequences for violations.  Mediation may or may not be appropriate at this point, depending on the nature of the incidents.  It might be good for Mike and Mary to sit down together with a neutral third party and to discuss, in a controlled environment, what happened between them.  Mediation is an option, whether or not the investigator finds that Mary’s behaviour was inappropriate.  Mike’s hurt feelings are real, whether or not Mary intended him to feel badly, and whether or not her actions crossed the line into harassment.  Mike and Mary may still have to work together, and clearing the air between them is a good idea.

Once you have a policy on workplace harassment and programs in place to implement it, don’t be surprised if you start to receive complaints.  Employees may feel that they no longer have to put up with behaviour that they have endured for some time.  And don’t be dismayed to receive complaints.  Although it isn’t nice to think that harassment occurs in your workplace, being aware is the first step in stamping it out.

Follow-up article in "Women's Post"

A follow-up article written by me and fellow mediator Dr. Pamela Hudak just appeared in the on-line edition of Women's Post.  The article is called "Five Ways to Diffuse Workplace Conflict" and you can read it here.

Bill 168 – What Are Employers’ Responsibilities?

Ontario’s Bill 168 lays out the responsibilities that employers have in preventing and responding to workplace violence and harassment.

Employers have a duty to assess the risks of workplace violence, and to consider all potential sources of violence in the workplace (“from strangers, clients, customers, patients, students, workers, supervisors, intimate partners, or family members”).  And they must have measures and procedures in place to control these risks. Employers must also take reasonable precaution to protect workers at risk of domestic violence, if they are aware (or ought reasonably to be aware) of such risks.  It is worth noting that an employer’s obligation is not cancelled if the targeted worker does not want any steps taken to protect her.  While employers must respect their workers’ privacy, they must nonetheless take precautions on behalf of workers who are at risk of violent attack.

Finally, employers must warn workers if, in the course of their work, they will be in contact with a person with a history of violence, and if they are at risk of physical injury.  Once again, privacy concerns may be relevant here, but the right to privacy does not trump the duty to inform workers if they are at risk.

Every employer must have a policy on violence and a policy on harassment (or a single policy on both).  If an employer has 6 or more regular employees, then the policy must be written down, reviewed annually, and posted in the workplace.  Employers must also have a program to implement the policy, and they must make sure that employees are informed about both the policy and the program.

At a minimum, the policy should:

•    State that violence is an occupational health and safety hazard
•    Define workplace violence and harassment, and state that they are unacceptable
•    Make a commitment to protecting workers from violence and harassment
•    Encourage workers to report all incidents of violence and harassment
•    Make a commitment to investigate and deal with complaints promptly
•    Outline consequences of behaviour covered by the policy

To sum up, employers have a duty to recognize inappropriate behaviour and deal with it promptly, and they must communicate to their employees how they plan to fulfill this duty.

I am not a lawyer and none of this is intended as legal advice!  The Ontario Ministry of Labour has some excellent resources for Bill 168 on their website, including examples of policies and programs, and tools for drafting your own policies.  (It might also be helpful to look at one of my earlier posts, How to Write a Code of Conduct.)

Next time:  How to deal with complaints under your policy.

Article in "Women's Post"

"Five Myths of Workplace Conflict," an article I co-wrote with fellow mediator Dr. Pamela Hudak, just appeared in the on-line editions of Women's Post.  You can check it out here.

Defining Workplace Violence and Harassment – What Bill 168 Says

Ontario’s Bill 168 is an amendment to the Occupational Health and Safety Act and has been in effect since 2010.  Its aim is to establish minimum standards and to set out the rights and responsibilities of all those who have a role dealing with violence and harassment in the workplace. Although you may feel that you “know it when you see it” when it comes to violence and harassment in the workplace, it is a good idea to familiarize yourself with the legal understandings of these terms.

“Workplace violence” means the use, attempt to use, or the threat to use physical force that causes or could cause injury, in a workplace.  The “threat” of violence includes threatening notes, emails, or telephone calls.  (The legislation is silent as to Facebook postings and threats via Twitter.)

It is important to note that the relevant factor here is that the violence occurs in a workplace.  Who commits or threatens the violence is not relevant.  A violent act or threat may originate with another worker, a supervisor, a customer or client, an acquaintance of someone in the workplace, or a random stranger. When employers assess the risk of workplace violence (as they are obliged to do), they must consider all of these possible sources of violence.  It is worth noting that domestic violence that takes place in a workplace is covered under the Act, and that employers have a duty to protect workers from domestic violence in the workplace.

Although workplace violence can have deadly consequences, thankfully it is relatively rare.  Workplace harassment doesn’t often make the news, but I suspect that it contributes more often than we realize to low morale and low productivity.  (See my previous posts on Workplace Strife and What makes for a “good job”?)  “Harassment” is defined as a course of “vexatious” (bothersome) comment or conduct that is unwelcome, or ought reasonably to be known to be unwelcome.  Examples include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, and making offensive or intimidating phone calls.  A “course” of comment or conduct implies that the behaviour in question has happened more than once.

Does this mean that a supervisor can no longer criticize a worker’s job performance?  No.  Reasonable actions on the part of a supervisor that are part of his or her normal work are excluded.  These include changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of dress codes and disciplinary action.  For example, it is perfectly acceptable for Mary to tell her employee, Mike, that the company’s dress code requires him to cover up his new tattoos while on the job.  It would not be acceptable for Mary to belittle or ridicule Mike for getting tattooed in the first place.  Nor would it be acceptable for Mary to allow or encourage others in the workplace to hassle Mike about the tattoos.

I am not a lawyer and none of this is intended as legal advice!  The Ontario Ministry of Labour has some excellent resources for Bill 168 on their website.

In my next post, I’ll talk about employers’ responsibilities under Bill 168.

What makes for a “good job”?

My daughter is an avid player of the iPhone/iPad game “Tiny Tower.”  The object of the game is to make your tower as tall as possible, all the while managing the businesses and apartments within and seeing to the happiness of your residents or “bitizens.”  I think it says something about our recessionary world that the way to make your bitizens happy (complete with smiley faces) is to put them into their “dream job” – whether it is to work in a bakery, a dental office, or a tattoo parlour.  Consider that for a moment – the way to happiness isn’t through leisure, family and loving relationships, knowledge or spiritual enlightenment, but through having the right job.  (Another perspective on “Tiny Tower” appeared here, on the “PopMatters” website.)

Most of us spend a lot of time at work, and there is no doubt what happens at work contributes to our sense of well-being.  And most of us recognize that we’re better suited to (and would be happier doing) certain jobs rather than others.  But a recent study suggests that what makes us happy at work is not always what we think it is.  Thomas Cornelissen examined the data collected by the German Socio-Economic Panel, a household-based survey of the German population which started in 1984 and has now surveyed over 20,000 adults.  He found that the three most important factors in job satisfaction were (in this order)

• Relations with colleagues and supervisors
• Task diversity
• Job security

Cornelissen’s article, “The interaction of job satisfaction, job search, and job changes. An empirical investigation with German panel data” appeared in volume 10, no. 3 of the Journal of Happiness Studies. (He also found that lack of job satisfaction leads to the probability of job search, which in turn leads to increased likelihood of job change, especially when labour market conditions are favourable.  But that is what you would expect, isn’t it?)

The lessons for managers seem clear, if not always easy or obvious to put into practice.  Employees will be happier and will be more likely to stay on the job if their relations with one another and with management are good.  And how to help develop and maintain those good relations?  Make sure that your employees can talk to you.  Understand the cost of workplace strife.  And when conflicts arise, consider workplace mediation .

Anger on the Job

I recently read a terrific article on anger in the workplace:  Deanna Geddes and Lisa T. Stickney, “The trouble with sanctions: Organizational responses to deviant anger displays at work,” published earlier this year in Human Relations (vol. 64 no. 2).  The authors surveyed employees in the U.S. about expressions of “deviant” anger they had witnessed in the workplace, the responses by management and co-workers, and about overall outcomes.  Their results may surprise you.

I often work with people who have been on the receiving end of or witnessed an angry outburst.  Someone (an employee, co-worker, neighbour, or partner) simply “lost it.”  The specifics may include yelling, screamed obscenities, slamming doors, threats of violence, hurtful email messages WRITTEN IN ALL CAPS, and the uncomfortable silence that follows, lasting from a few hours to several days, when no one is sure what to say or how to respond, and everyone fears what might happen next.

While it is uncomfortable to be on the receiving end of an angry outburst, being the one who “loses it” in front of others is hardly much better.  I wrote in an previous post that our sense of anger is often tied to our perception of injustice.  Although there are people who become angry at everything (or at nothing), expressions of anger sometimes have a legitimate cause.  Anger in the workplace can signal systematic and significant problems.

Geddes and Stickney found three different kinds of responses to anger in the workplace:

• Sanctions:  These may be formal (warnings, suspensions, dismissal) or informal (coworkers distance themselves from the angry person or respond with anger in kind).
• Support:  Management and/or co-workers try to understand what caused the outburst.  They may speak with the offender about his or her behaviour in a supportive manner.
• Avoidance:  Everyone pretends that the outburst never happened.

The authors found that when management and co-workers responded to anger in a supportive, problem-solving manner, the results could be positive.  As the authors write, “even intense emotional outbursts can provide information, and if responded to more compassionately, can lead to favorable change.”  They found that even a single supportive act by a manager or co-worker could significantly improve a problematic situation.

Surprisingly, acts of deviant anger, even physical acts of anger, were found sometimes to have significantly positive effects in the workplace, even though they were often met with formal sanctions.  Physical anger displays and employee dismissal were highly correlated, but there was no association between dismissals and positive change in the workplace.  So whatever made the situation better, it was not simply because one angry person (a “bad apple”) was removed.  The authors think it more likely that a physical act of anger, because it is so highly visible and difficult to ignore, prompts an immediate response by management, including attempts to address the cause of the emotional outburst.

The least effective response to anger?  Pretending that it didn’t happen.  The evidence in this study indicates that ignoring emotional episodes is not good practice.  Not only is the opportunity for positive change lost, but the lack of any response is frequently troubling to other employees.

The lesson for managers:  When employees “lose it” on the job, there must be a response.  Emotional displays that reflect an aggressive or harmful intent must be sanctioned, and hostile or violent employees must be removed.  Less intense and troubling outbursts can lead to positive change if they are used to identify those workplace conditions that require attention.  Responding to anger and other emotional outbursts can be difficult, but the viability of your business may depend on it.