Employers anxious about the boundaries of the workplace harassment provisions of the Occupational Health and Safety Act, RSO 1990, c. O.1 (“OHSA”) can breathe a sigh of relief. Two recent Ontario decisions have made it clear that rude conduct and hurt feelings don’t necessarily equal “workplace harassment”. They have also confirmed that workplace harassment does not turn on the emotional impact on the employee, but rather objective evidence about the conduct of the employer.
Subsection 1(1) of the OHSA defines “workplace harassment” as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”, including workplace sexual harassment. Based on this definition, an argument could be made that the issue of whether conduct is “unwelcome” depends, at least in part, on the subjective feelings of the recipient of the conduct. Not so, recent case law has ruled.
Harassment to be Objectively Assessed
In OPSEU and Ontario (Ministry of the Solicitor General) (Barker), Re, 2020 CarswellOnt 1612, the Ontario Grievance Settlement Board considered whether a prima facie case of workplace harassment could be made out against a manager in connection with a statement she made to the grievor, an employee. According to the employee, the manager told her that her participation in mediation involving two of her co-workers was requested by the two co-workers, when really it was recommended by a consultant engaged by the company. The employee argued that she was induced into participating in the mediation, ultimately resulting in harm to her relationship with her co-workers.
The Board rejected these arguments, finding that harassment is to be assessed objectively and involves a heedless or improper use of power, a departure from the norm, or a reckless disregard for the rights of another person. In this case, not even a prima facie case could be made out against the manager on the facts as alleged. The particulars established that the employee felt she was harassed by the manager and suffered greatly as a result of the incident, but this was not enough. The manager, who was acting within the scope of her management responsibilities, had left the employee with the mistaken impression that the mediation had been requested by the two co-workers. It was not a case where it could be said that the manager should have known better.
Embarrassment Not Rising to the Level of Harassment
More recently, in OECTA and Kenora Catholic District School Board (Demers), Re, 2021 CarswellOnt 741, an arbitrator arguably went even farther, ruling that inappropriate conduct that had the effect of embarrassing and deeply offending a teacher did not rise to the level of workplace harassment. The grievor was an itinerant teacher teaching a lesson to the grade five students (about 20 in number) of a grade five/six split class. The grade six students (about five in number) had already been assigned their work prior to the grievor’s arrival. They were seated at the back of the class, being supervised by two education assistants. The principal of the school came to observe the lesson and mistakenly assumed that the grade six students weren’t paying attention to the lesson. After the grievor advised the principal of the situation, the principal sought to save face by pretending that there was a noise issue and ordering all of the students to put their pencils down and listen to the grievor. The students were confused by the situation and the grievor was deeply offended and embarrassed.
The arbitrator found that the grievor was subjected to embarrassment unnecessarily because of the principal’s mistake and her subsequent foolish efforts to cover up the mistake. While it was understandable that the grievor felt as offended as he did, and while the principal’s conduct was inappropriate, it did not rise to the level of harassment. The arbitrator concluded that not every unreasonable, inappropriate, or unwise management action constitutes harassment, even where such action causes embarrassment to, and offends the employee.
These common-sense decisions bring some clarity to the precise limits of the workplace harassment provisions of the OHSA. It is not enough for an employee’s feelings to be hurt, or for the employee to be embarrassed as a result of the employer’s conduct. The real question is whether the employer, objectively speaking, should have known better in the circumstances. Unfortunately (or fortunately, from a lawyer’s perspective), reasonable people can disagree about whether an employer should have known better in a given case. The upshot is that we can certainly expect to see more cases dealing with the bounds of workplace harassment in the future.