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Feb 3, 2014

The root of the problem

Good investigation can avoid the risk of dismissing harassment as a simple workplace dispute
    

By Jeffrey R. Smith

Workplaces can be dynamic places with varying personalities. That’s why it’s important for businesses to maintain control over things through a fostering of workplace culture that maximizes co-operation and reduces the chance for disruptive conflict.

Workplace policies can go a long way towards the smooth operation of the business — as long as policies are followed. And when conflict erupts — which it very well can when people of varying types interact for several hours a day — it’s a good idea to be able to recognize the root of the conflict in order deal with it appropriately.

Certain types of conflict can be more troubling than others — such as those inspiring significant anger and arising out of discriminatory circumstances. When it comes to discrimination and harassment based on human rights issues, the bar is set pretty high for resolution of the conflict.

One Ontario municipality stirred up some legal trouble and contributed to an employee’s poisoned work environment by not identifying the true source of conflict between the employee and a supervisor for what it was — sexual harassment as opposed to a simple clash between them.

The employee worked for a transit service and was the first woman in the male-dominated workplace within the transit control department. One supervisor had a habit of sending her dirty emails and massaging her shoulders. The employee asked him to stop both activities, but the supervisor didn’t and continued to make inappropriate comments and other conduct towards her.

When the employee complained to management and HR, it indicated it was aware of such activity by the supervisor previously. However, it treated it as a simple dispute between the two and ignored the established harassment policy’s procedure. Nobody ensured the supervisor took sexual harassment training and he was simply given a discipline letter warning him not to continue.

The employee was kept out of the loop regarding the measures taken and had to still work with the supervisor. There were more incidents of harassment and she was forced to switch shifts and became stressed, missing work occasionally. At one point, it was even alleged the emails she complained about were falsified, though eventually the emails were verified and the supervisor was fired for lying about them.

An arbitrator found the city created a poisoned work environment and failed to meet its duty to provide a harassment-free workplace. It didn’t properly handle her complaint and let the harassment continue. It was on the hook for $25,000 plus compensation pay for sick days taken, as well as required to evaluate its human rights training.

Conflict in the workplace should be taken seriously, but if it’s the result of discriminatory or harassing conduct, it’s that much more important to deal with. In the case above, the employer should have recognized the circumstances — one woman in a workplace of men — and the employee’s vulnerability. In addition, knowing the harasser had a history and continuing to force the employee to work with him after the complaint was a recipe for disaster.

A poisoned work environment is never a good thing for anybody. It hurts employees and it can hurt productivity. And failing to get to the root of that environment can hurt the employer legally.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business  perspective. He can be reached at Jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

    
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