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Date:
2016.07.28

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THE EMPLOYERS' EDGE

Arbitrator Finds that Grievor’s Subjective Perception of Supervisor’s Conduct NOT Harassment

Practice Areas: Human Rights

What is harassment? 

Is it excluding employees from speaking at a meeting, criticizing for chewing gum and not saying good morning? Or does it include encouraging an employee to apply for another job, sharing anecdotes with an employee and valuing an employee’s opinion?

Arbitrator Bendel M., in Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, answers the above questions. The Arbitrator affirms modified subjective to be the standard for determining workplace harassment. Reasonable conduct will not lead to a finding of harassment.

This case serves as a reminder that an employee who complains about behaviour that is within the realm of reasonable conduct will be unable to make a claim of harassment; regardless of the effect that behaviour might have had on the employee.

The grievor was a full time employee of the employer since 1989. The grievor started off with the employer as a Clerk/Typist, then as a Programme Consultant and was then appointed as a Chair’s Assistant in 2002.

The grievor alleged that in her 7 years of employment as the Chair’s Assistant to the Chair of Lawrence Kinlin School of Business (“the School”), she was harassed and bullied by Ms. Pierce, the Chair of the School, contrary to the collective agreement and the Human Rights Code.

The grievor alleged that she experienced negative behaviour towards her which led to an unbearable level of stress, forcing the grievor to take a sick leave. After returning from her sick leave, she transferred to another low-paying position with the employer, in order to remove herself from the hostile environment.

Before making a formal complaint in January 2014, the grievor had submitted an informal complaint under the employer’s policy against the Chair, Ms. Pierce.

Some of the grievor’s complaints alleged that Ms. Pierce failed to greet the grievor in the morning, criticized her for chewing gum and objecting over grievor’s suggestions. The grievor further alleged that Ms. Pierce’s behaviour towards her made her feel undervalued and incompetent.

The employer did not challenge most of the facts relied upon by the union, but disputed the grievor’s characterization of her relationship with Ms. Pierce. Ms. Pierce explained her busy and dynamic position. She further expressed no complaints about the grievor’s behaviour or her performance.

With the employer’s business expanding, the workload on the grievor increased. Upon the grievor expressing this concern to Ms. Pierce, she was relieved of her payroll responsibilities for a couple of years but had to resume for a year because of change in personnel. Further, Ms. Pierce also took interest in the grievor’s career and encouraged her to pursue promising career paths.

From the grievor’s perspective, Ms. Pierce’s behaviour might be objectionable. However, none of this behaviour, viewed objectively, could support a finding of harassment or bullying.

The Arbitrator reasoned that a departure from reasonable conduct is a prerequisite for a finding of harassment. Drawing on previous decisions, the Arbitrator concluded that “an employee who complains about behaviour that is within the reasonable conduct will be unable to satisfy an arbitrator that there has been harassment, regardless of the effect that behaviour might have had on the employee”.

The grievor failed to show that any of the alleged conduct resulted from animosity towards her by Ms. Pierce or that she was singled out in some way. It was noted that the grievor worked in an organization that was undergoing rapid growth and it was foreseeable that some employees might find a faced paced and rapidly changing environment to be stressful. However, Ms. Pierce’s general conduct and expectations at work were not so egregious as to constitute it as being unreasonable.

Looking at the evidence as a whole, the alleged complaints of the grievor, viewed as individual incidents or patterns did not warrant a finding of unreasonable conduct resulting in harassment.  Although this case clarifies that not all behaviour of the employer will be deemed inappropriate, employers need to recognize that certain conduct can still resulting in a finding of harassment.

The lawyers at CCPartners are experienced in all aspects of human rights law. Click here for our professional and experienced lawyers who can help.  

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