Just because you were offended does not mean you were harassed

The Occupational Health and Safety Act defines harassment in the workplace as engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome.

Some years ago, the legislation was changed to include an obligation by employers to have some sort of investigation of any complaint of harassment in the workplace. In most cases, the legislation permits the human resources department or management to conduct the investigation. Hiring an outside investigator is only required where there would be a conflict because the alleged perpetrator is in management or an owner.

Many employers, however, do not feel that they have the ability to conduct an investigation themselves and end up hiring an outside investigator. This has created a whole new industry over the last several years. Hiring an outside investigator can involve major money.

I have seen many circumstances where the harassment complaint was justified and the legislation was important in protecting workers. I have also seen many occasions where a supervisor or manager who insists people do the work they are being paid for becomes a target. The results of the department may be good or improving but suddenly human resources receives a complaint from a number of the supervisor's reports claiming harassment. Unfortunately, I have seen too many circumstances in which a weak-kneed human resources department recommends the termination of the alleged perpetrator based on "harassment" that is no such thing.

Just because you don't like your boss doesn't mean you are being harassed. Just because you got a bad performance review does not mean you are being harassed.

Barbara was a member of the union.

She was a housekeeper at a hotel and began each shift looking at an app on her phone to see which rooms she had been assigned to clean. She noticed that one of the rooms she had been assigned at the beginning of the shift had been removed before she cleaned it. She called the housekeeping office to ask that the room be reassigned and was told it had been removed because the guest indicated they did not need the room cleaned. Barbara called the front desk and based on whatever they told her cleaned the room anyway. When she finished she called housekeeping again to ask that the room be assigned on her app so she could mark it as cleaned. Her supervisor answered and was wondering why Barbara cleaned the room because it had been designated "no service." When Barbara asked that it be reassigned on the app the supervisor said "I am not going to do anything." Barbara claims she was brusque and dismissive. She said the supervisor hung up on her. The supervisor, when this matter came before an arbitrator, not surprisingly, did not remember much of the conversation. She did say she didn't hang up on Barbara. She hung up because the call was over. Later in the day of the incident, Barbara had a bit of a heated conversation with the head of housekeeping about the incident. She claimed that he called her garbage. The head of housekeeping completely denied calling Barbara garbage and said he would never say that to anybody.

Even later in the day, the head of housekeeping called Barbara to ask her to come to his office. Some garbage had been found left in a room that she had cleaned that day. She refused to come because she said she was allergic to an animal in his office. Apparently Barbara had a temper.

Some of Barbara's coworkers gave evidence that the supervisor was routinely rude, abrupt and condescending.

Ultimately, the adjudicator found that while the supervisor probably tended to engage in very direct communication, the incident was not sufficient grounds for a finding of harassment.

The adjudicator did not believe that the head of housekeeping called Barbara garbage. It was decided that the supervisor and the head of housekeeping were engaged in work-related tasks around the supervision of Barbara. Harassment had not been established.

Whether someone is unionized or not, a harassment complaint is expensive. Barbara's hearing took three days and lawyers were paid.

While Barbara's employer did not hire an outside investigator, many do. If an employer gets repeated complaints that they have to pay somebody to investigate about one manager, it can become an economic equation. Employers may decide it is cheaper to pay out the manager's severance package than continue to hire investigators.

I applaud this legislation and think that on the whole it has had a positive effect on work environments. That does not mean it is not sometimes abused.

Ed Canning practises employment and human rights law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com.

This article was originally posted on The Hamilton Spectator, where Ed Canning is a freelance contributing columnist.
Ed Canning
Ed Canning
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