HOW TO KNOW THE DIFFERENCE
By Ozlem Yucel
In a recent research study by Forum Research, 55 per cent of
Canadians reported having experienced or witnessed bullying
at work. In many cases, the perpetrators of this bullying are
managers. However, conduct that is perceived as bullying falls
on a wide spectrum. Sometimes, workers characterize behaviour
as “bullying” when it is not. So, how are human resources profes-sionals
to tell the difference between what is and isn’t bullying?
This article seeks to provide an overview of the law surrounding
bullying and harassment and, in reviewing the law, assist readers to
understand when conduct by a manager may be crossing the line
from the proper exercise of authority to bullying behaviour.
OVERVIEW OF THE LAW
Employers have a legal obligation to not only prevent bullying
and harassment from occurring in the workplace, but they also
have an obligation to address it when it occurs. Under Ontario’s
Occupational Health and Safety Act (OHSA), employers are
required to prepare, review and post policies concerning workplace
harassment, have a program in place to implement that policy and
ensure all incidents are appropriately investigated. Under Ontario’s
Human Rights Code (the Code), employees also have a right to be
free from harassment in the workplace because of grounds pro-tected
under the Code (such as age, disability, race, etc.).
WHAT IS HARASSMENT?
Under both OHSA and the Code, harassment is defined as, “a
course of vexatious comment or conduct against a worker in a
workplace which is known or ought reasonably to be known to be
unwelcome.” While this definition refers to a course of conduct,
a single occurrence, if sufficiently vexatious, can also consti-tute
harassment. The word “vexatious” has been defined to mean
behaviour that is “annoying, distressing, agitating,” and, “worri-some,
discomfiting or demeaning” to the complainant.
To establish that behaviour is “unwelcome,” it is not necessary
for the complainant to object. The case law recognizes that, given
the power imbalance in the employment relationship, employ-ees
may not feel comfortable objecting to unwelcome behaviour.
Where complainants have not raised an objection, determining
whether impugned behaviour is “unwelcome” will involve assessing
whether the respondent ought to have known that their behaviour
was unwelcome. This analysis will turn on whether a reasonable
person in the complainant’s position would find such conduct
to be unwelcome, and if so, whether a reasonable person in the
respondents’ position would know that to be the case.
The test for harassment is, therefore, primarily an objective one.
If the respondent’s behaviour is known or ought reasonably to be
known to be offensive, it is harassment. On the other hand, if a rea-sonable
person would see the behaviour as benign, the very sensitive
complainant may not be considered the victim of harassment.
WHAT IS NOT HARASSMENT?
Under OHSA, the definition of workplace harassment excludes
“reasonable action taken by an employer or supervisor relating to
the management and direction of workers or the workplace.” What
constitutes “reasonable action” will depend on the facts of each case.
In general, the proper exercise of authority related to the provision
of advice, assignment of work, counselling, performance evaluation,
discipline and supervisory functions has generally been found to
not constitute harassment. An employer is entitled to be critical of
unsatisfactory work by an employee and, in general, to take mea-sures,
disciplinary or otherwise, that it believes appropriate.
CASE LAW EXAMPLES
Below are examples of cases where harassment was not found:
■■ A worker who was dissatisfied with two negative performance
appraisals accused his supervisors of bullying. The arbitrator
dismissed the complaint and found that no harassment occurred
on the grounds that the supervisors’ criticisms were “legitimate”
and expressed appropriately.
■■ A manager’s repeated reminders about work expectations and
requests that an employee work harder or put in additional
time were deemed to not constitute harassment. At most, the
manager made blunt, unflattering assessments of the employee’s
performance and ultimately reasonable demands that she fulfill
work expectations or risk discipline.
These cases stand for the general principle that workplace
harassment protections do not normally apply to management’s
reasonable supervision of their employees, even if in the course of
carrying out that supervisory function a worker suffers unpleas-ant
However, harassment will be found where a manager’s con-duct
goes beyond the scope of their reasonable exercise of
authority. In the case of University Health Network v OPSEU,
40 ❚ CONFERENCE ISSUE 2019 ❚ HR PROFESSIONAL