Decision Provides Insight into the Concept of Personal Harassment

October 6, 2015
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A recent arbitration decision has shed some light on the concept of personal harassment and its role in the creation of a poisoned work environment. In Children’s Hospital of Eastern Ontario and OPSEU, Re, the Grievor, a Social Worker, had been terminated for cause by the Hospital for engaging in harassing conduct of her coworkers. Two of the Grievor’s coworkers had filed formal complaints against her, and the Hospital had conducted both an internal and external investigation into the Grievor’s conduct. The investigations had determined that the Grievor engaged in an abusive pattern of significant harassing and ostracizing conduct that both poisoned her work relationships, and had a negative impact on patient care. The Grievor alleged that the termination had been without cause.

The behaviour alleged in this case was not of the yelling, name-calling, obvious variety. It was a more insidious and subtle pattern of conduct that included eye-rolling, giving angry looks, raising her voice, ignoring people, and questioning them in an aggressive manner. The Arbitrator here spoke decisively on the fact that whether the conduct is obvious or subtle is irrelevant, stating that “the subtle nature of the conduct does not militate against a finding of harassment”. The ultimate determination was whether the conduct was vexatious and known, or ought to be known, to be unwelcome. The Abritrator also debunked the personality myth that often plays into harassment assessments, stating that “personality is not a defense to harassment”. She emphasized that it is the workplace rules of conduct that guide individuals, not their own preferred ways of dealing with colleagues.

The Grievor was found to have engaged in harassing behaviour, and it was determined that what had occurred was not a typical workplace conflict or difficult relationship; the Arbitrator stated that “…being ignored or having your comments/role belittled through passive non-verbal behaviour strikes at the heart of a person’s sense of self as an employee and as an individual”. Interestingly, the Arbitrator emphasized that the Grievor’s role as a Social Worker increased the expectation on her to behave in a respectful and communicative way. It was held that due to her training in that profession, she should in fact have a heightened sense of workplace dynamics, and of what kind of conduct might negatively impact relationships in a workplace.

Finally, the Arbitrator found that it was the cumulative effect of the ongoing and sustained harassing behaviour that resulted in the creation of a poisoned work environment for her colleagues. Staff were avoiding the Grievor completely, and often felt that they could not safely express themselves regarding workplace matters for fear that the Grievor would engage in further harassing behaviour. While the Grievor was found to have engaged in harassment and had created a poisoned work environment, the Arbitrator did not uphold the termination. She found that reinstatement was not appropriate given the damage done to the relationship between the parties, and determined that damages in lieu of reinstatement was the appropriate remedy.

This case puts some meat on the bones of the concept of personal harassment, still a fairly new legal principle and one that can be difficult to define as it contains both subjective and objective elements. These kinds of cases will of course always be determined on their specific facts, but practitioners in this area will appreciate that the body of case law on which to pull from is building. The other potentially influential aspect of this case is the fact that the Arbitrator held that the Grievor, as a Social Worker, should have known better because her specific job called for a higher level of understanding of interpersonal behaviour. While it is common that expectations regarding conduct are higher for those in supervisory positions in the workplace, we don’t often see decision-makers raising the bar because of the specific skill-set of one’s position. This is an interesting angle that ought to be considered by practitioners and employers alike.

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