Employers have obligation to protect from workplace harassment

Employers in Ontario, as of last summer, have an obligation to protect their employees from workplace harassment. “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.”
 
Employers with more than five employees must have posted policies and a process for complaints about workplace harassment to be dealt with. An employer who fails to protect their employees from workplace harassment can be subject to some pretty hefty consequences pursuant to the Occupational Health & Safety Act.
 
Notwithstanding that a definition has been provided, nobody really knows yet what workplace harassment means. Webster’s Dictionary defines vexatious as “instituted without real grounds and meant to cause trouble or annoyance.” No cases have been decided yet which give us any meaningful exploration of what workplace harassment means.
 
The Ministry of Labour website states that, in the Ministry’s opinion, it could include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials or offensive or intimidating phone calls. Keep in mind that is just the Ministry’s interpretation for now. Ultimately, judges will decide as cases make their way through the system.
 
This is not just about what boss’s say to their employees. The Act is also meant to protect workers from harassment by colleagues.
 
The Ministry’s opinion is that bullying is also included. Webster’s defines bullying as oppressing somebody weaker than yourself through intimidation. Clearly, an employee is in a weaker position than their boss within the workplace power structure. A co-worker may be a stronger personality and more comfortable with confrontation than you are. If you are “weaker” then you can be bullied by a co-worker.
 
But, remember that the Act uses the word vexatious. That is annoying behaviour without any real grounds. So, if your boss is constantly criticizing your work performance it’s not necessarily bullying if there are grounds for those criticisms. Vexatious also means that the behavior is meant or intended to be annoying. How does anyone prove that?
 
Let’s imagine that the boss is constantly riding you for not being aggressive enough in dealing with confrontational situations that are part of the job. She’s constantly telling you not to be such a mouse. Being called a mouse can truly become annoying. Imagine you call in a Ministry of Labour investigator. The boss says that it’s not vexatious conduct since you do behave like a mouse when you should be more assertive and therefore there are grounds for the criticism. Unless they spend a week or two sitting beside you at your desk, how is an investigating officer supposed to make any valid decision on this very subjective assessment of the behaviour? Imagine a co-worker calls you an ostrich because they believe you avoid problems and stick your head in the sand. We’re back to the same place. Who is to say whether there are grounds for the criticism?
 
I believe the temptation of investigating officers will be to focus on the way the message is delivered rather than whether the criticism is legitimate. It’s really the only option they have. But doing that ignores the definition of the word “vexatious”. Particular words are used in legislation because they have particular meanings. The Ministry of Labour may choose to ignore that meaning but a judge may not if the matter ends up in a courtroom.
 
Even if name calling is not involved, you feel like you are living under a microscope. You are being picked on because a boss or co-worker has taken a dislike to you.  I guarantee you that there are thousands of people in Ontario today who feel that they are in this situation. As more people become aware of the law protecting them from workplace harassment, more complaints are going to be filed.  Every case has to be investigated sooner or later. As more complaints come in, it will be later rather than sooner.
 
We do know that one comment, one joke, one phone call, will not found a complaint. The provision refers to it being a “course” of comment or conduct. That means it has to be a pattern of behaviour and not just an isolated incident or two.
 
It also has to be behaviour that is known or ought reasonably to be known to be unwelcome. If you have been in the habit of sharing offensive jokes, laughing along with everyone else or making no comment when they were told, you may be out of luck if you suddenly decide that you didn’t like those jokes after all.
 
Sometimes, common sense tells us that something is simply inappropriate regardless of whether or not somebody else objects. Often, however, this is a grey area.
 
Ultimately, either the Ministry of Labour or the courts will have to refine and tighten up the definition of workplace harassment or the system will become flooded and grind to a halt. In the meantime, play it safe. Be kind to one another.
 
As published in the Hamilton Spectator, March 7, 2011
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com