Labour Arbitrator says: "A Finding of Harassment Requires a Departure from Reasonable Conduct."

What constitutes workplace harassment?

Every time I encounter a case of alleged workplace harassment, which is far, far more frequently than anyone outside this practice might think, I harken back to what the Honourable Justice Perell wrote in the case of High Parklane Consulting Inc. v. Royal Group Technologies Limited, 2007 CanLII 410 (ON SC):

[36] It is trite to say that that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another, and the elements of the tort of intentional infliction of mental distress that the conduct must be extreme, flagrant, outrageous and calculated to caused harm are the law’s ways of narrowing the ambit of the tort.

In short, there are some behaviours up with which one must put, if I may paraphrase the great Sir Winston Churchill.

But, returning to the point, the law does, at least in theory, prohibit workplace harassment. In the labour context, collective agreements often forbid such behaviour, so what then constitutes workplace harassment?

In a labour arbitration award released April 18, 2016, Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, 2016 CanLII 23226 (ON LA), Arbitrator Michael Bendel defined the answer as follows, “a finding of harassment requires a departure from reasonable conduct.”

The case stands as an important reminder that notwithstanding a written prohibition against workplace harassment, someone still needs to agree that the behaviour complained of rises to that level.

Facts

The award is long and the complaints are many. For anyone unfamiliar with the tone of workplace harassment complaints, the award does a very good job of setting out what must have been a great deal of testimony.

By way of summary, the grievor in this case complained of several incidents of workplace harassment spanning some seven years that she worked for her boss. The crux of the problem appeared to be that the grievor’s boss was busy, being the chair of the respondent’s school of business, and often intense. The boss, Ms. Pierce, had a number of demands of the employee, including scheduling meetings, checking email, and other menial tasks. Ms. Pierce was described as being “in chaos” and unable to spend sufficient time speaking with the employee.

There were also concerns of Ms. Pierce being upset at the employee for chewing gum; often demanding that the employee remove it from her mouth. Ms. Pierce also refused to buy a new Christmas tree when the old one was becoming too cumbersome, the result of which being that the staff purchased a new tree with their own money… It is true, “much of life can be nasty and brutish.”

The list of complaints continued, but they appeared to be of the same quality.

Decision

In dismissing the grievance Arbitrator Michael Bendel wrote the following, which is salient to the issue of what constitutes workplace harassment:

In my view, a prerequisite for a finding of harassment is that the conduct about which the complaint is made be “a departure from reasonable conduct”. This was the conclusion of arbitrator Luborsky in Re Cara Operations, drawing on language used by arbitrator Shime in Re Toronto Transit Commission. An employee who complains about behaviour that is within the realm of 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.

I should add that it seems obvious to me that a decision on the reasonableness of the impugned conduct has to take account of the particular work situation. In this connection, I note that the grievor worked in an organization that was undergoing rapid growth. It is entirely foreseeable that some employees might find a fast-paced and rapidly changing environment to be stressful (although others might find it invigorating). The question I have to consider is whether Ms. Pierce’s behaviour could be regarded as egregious in such an environment.

It is also important to note that the grievor has not alleged that any of the conduct of which she has complained resulted from animosity towards her by Ms. Pierce, or that she was in some way singled out by her for unfavourable treatment.

With those observations in mind, I turn to the more general allegations made by the grievor in her testimony about Ms. Pierce’s behaviour.

I cannot accept that the assignment to the grievor of certain clerical tasks, which made her feel “insignificant” and “undervalued”, supported her claim of harassment. There is no suggestion by the grievor that the tasks in question were not within the scope of the duties of a Chair’s Assistant. The grievor might well have been capable of handling more challenging duties, as she had done with Ms. Pierce’s predecessor, but I do not understand how the assignment to her of responsibility for certain clerical tasks within the scope of her duties could constitute “vexatious conduct”…

Her next general complaint is that Ms. Pierce was “constantly in a state of crisis”, moving and talking fast, intense, “gritting her teeth”, “turning red in the face”, occasionally overlooking social niceties like saying “good morning”, and expecting the grievor to keep abreast of even her most recently received e-mails. I can appreciate that other managers might have handled and responded differently to the demands placed on them arising from the School’s rapid growth. I can also appreciate that working in such a hectic environment might not be to everyone’s liking. But I cannot conclude that Ms. Pierce’s general conduct and expectations at work were so egregious as to constitute unreasonable conduct.

…

To put these incidents in context, it must be remembered that they were spread over the seven years the grievor worked for Ms. Pierce. While I do not question the sincerity of the grievor’s distaste for Ms. Pierce’s behaviour or the sincerity of her opinion about the effects of this behaviour on her, I am satisfied that most employees would not have given much thought to these sporadic, low-level contretemps or lost much sleep over them, but rather would have simply tended to shrug them off. [The Labour Relations Consultant for the employer] claimed in his submissions that the grievor had a tendency to take a “self-referential” view of incidents that occurred at work, and tended to “over-analyze” them, a claim with which I am inclined to agree. As I stated earlier in this award, a finding of harassment requires a departure from reasonable conduct. It cannot be based on a grievor’s perceptions and interpretations.

Looking at the evidence as a whole, I am unable to conclude that Ms. Pierce’s conduct about which the grievor has complained, viewed either as individual incidents or as a pattern, was such a departure from reasonable conduct as to support a finding of harassment.

Commentary

I have looked at and written about the issue of workplace harassment for years. I have often been frustrated by and openly critical of decisions dismissing workplace harassment claims. For what it is worth, I am of the personal opinion that there is no place in a modern work environment for harassment.

However, reasonable minds can disagree on what constitutes harassment.

In this case I find myself agreeing with the arbitrator.

What I find particularly noteworthy was the arbitrator’s rejection of the idea that simply because the employee was forced to take stress leave as a result of the workplace stress that she was forced to endure, which no one doubted or questioned, the stress must have been unreasonably unbearable. The same is a very important point: Just because the stress is too much for one employee to handle, does not necessarily mean that it too much for any employee to handle. The test, moreover, is a modified subjective test, i.e. a reasonable person in the same environment. Some environments, by their nature, will be more stressful than others – although to be honest, notwithstanding working in a number of industries prior to becoming a lawyer, I am not sure that any workplace environment is completely without its stresses. (I worked in a microbrewery for a while and even it had its share of workplace stresses.)

The point is this: Workplace harassment is more than any course of unwanted behaviour. It is, by and large, “a departure from reasonable conduct.” The problem most employees will face in such cases is that the case will likely be decided by someone who works in a very high-stress, timeline-governed, demanding job: decision maker. Being a judge is an incredibly demanding job. While slightly less demanding, the same can be said of labour arbitrators.

As a result of the stress placed upon decision makers (I can think of no greater pain than being forced to decide with whom a child will live), it can make complaints such as those raised in this grievance seem petty, which of course they were not to the grievor. However, because it is the decision-maker’s opinion that ultimately counts, employees contemplating such cases must remember that what they see as unreasonably stressful, others may view as welcome respite.

Takeaways for Employees with Labour Pains

So what do this case and my comments upon it mean for those who believe that they are victims of workplace harassment? The takeaway I wish to provide is that not all cases of workplace harassment are going to be successful. Employees need clear, cold, and objective counsel before starting any such claim. In most employment law cases the losing party must pay a portion of the winning side’s legal fees; the only thing worse than losing a case of workplace harassment is being forced to pay the legal fees of the person who you believe harassed you.

Takeaways for Employers with Labour Pains

For employers there are really two takeaways. First, not all behaviour will be deemed ‘illegal’ or inappropriate, so employers can take solace that they need not bend to every employee’s whim simply because there is a concern that the employee may make a complaint of workplace harassment.

However, employers need to recognize that while they may win the case at the end of the day, there are opportunity costs associated with defending such cases that could be avoided if the employer attempted to address the employee’s concerns outside of the courtroom setting. Not every attempt will be successful, but it can often be worthwhile to at least entertain the employee’s grievances.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.