Northern Exposure

Adding Insult to Injury: Canada’s ‘Vexatious’ Harassment Laws

By Julia Kennedy and Sean McGurran

Bullying isn’t just a problem on the playground anymore. Eventually the bullies grow up and get jobs. Now Canadian employers are seeing more laws dealing with harassment in the workplace.

As an example in June 2010, Ontario’s Violence and Harassment in the Workplace law came into effect. It requires employers to develop policies to address violence and harassment in the workplace and to implement procedures for employees to report these incidents.

Other provinces, such as Saskatchewan and Manitoba, have similar laws. Quebec has for several years had a law prohibiting “psychological harassment” in the workplace. That is defined very broadly. The federal government of Canada also requires antiviolence policies to be in place but defines violence for this purpose to include “bullying, teasing, abusive or other aggressive behaviour.” (See Ontario Adds to Broad Canadian Harassment/Violence Laws, January 11, 2010.)

The key problem from the employer’s perspective is that “harassment” could encompass a wide range of behavior. So what exactly falls under the category of workplace harassment for these legal purposes?

What constitutes workplace harassment?
The new law in Ontario includes the following definition:

“Workplace harassment” means 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.

A few recent cases in the labor arbitration and human rights contexts offer examples of conduct that might be considered to be workplace harassment:

In International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd. the Ontario Labour Relations Board considered a grievance from an employee who was let go for violating his employer’s workplace harassment policy. The conduct in question was a vulgar prank of a sexual nature that took place in the employee lunchroom.

It was videotaped by fellow employees and posted on the Internet. The grievor claimed that the prank reflected an “all-male” environment. He said that he had never seen the workplace harassment policy.

The dismissal was upheld. The Board ruled that even if the fired employee was unaware of the harassment policy and a number of his fellow employees shared his enthusiasm for the prank, it was patently unreasonable behavior for the workplace.

In a recent Saskatchewan labor arbitration, Saskatoon (City) v. The Canadian Union of Public Employees, Local no. 47, the arbitrator also had to determine whether the employee’s alleged harassment warranted discipline. The employee was alleged to have violated the employer’s respectful workplace and/or harassment policies on several occasions.

The employer alleged that the employee was “spreading negativity towards others,” ignoring people and making them feel “invisible.” He was swearing under his breath. The only allegation the employer was able to prove was that the employee would occasionally swear under his breath.

In the end, the arbitrator agreed with the employee that swearing under one’s breath didn’t offend the employer’s workplace harassment policy. But this was only because there was no evidence that it was directed at others.

While the Saskatchewan case seems to involve an employer acting on too little evidence, employers can still get in hot water for not being responsive enough when harassment occurs.

The Ontario Human Rights Tribunal, in Farris v. Staubach Ontario Inc., dealt with an employee who complained that her coworkers spread rumors of a sexual nature about her and referred to her using offensive remarks. She said that her employer wasn’t responsive and allowed a poisoned work environment to be created. The Tribunal agreed, ordering the employer to pay her $30,000 for injury to dignity, feelings, and self-respect.

Employers have to take preventative steps
The three cases above show the sorts of issues and conduct that employers might have to address in workplace harassment policies that are now required by law in several provinces. Employers need to assess the culture of their workplace and provide training to employees and management at all levels.

Management should identify when “joking around” is taken too far. They should address it before it develops into harassment. Without such preventative measures, employers can end up dealing with both complaints of harassment and claims of unjust discipline.