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Targeting real harassment

Good workplace harassment policies are important but so is differentiating harassment from less-serious workplace disputes

By Jeffrey R. Smith 

Harassment can be the scourge of the workplace if it’s allowed to fester, so employers are wise to keep on top of situations that could lead to potential harassment complaints. Efforts can include clear policies that define what constitutes harassment along with procedures in place for employees to file a complaint and the potential consequences for harassers. Failure to do so can result in not only a poisoned work environment for employees, but also legal trouble through human rights complaints. 

But employers should also make clear that while harassment won’t be tolerated, neither will attempts to abuse the policies and procedures that are there. While employees should feel safe in bringing potential harassment to their employer’s attention, they should also know that they should legitimately believe they’ve been harassed. Simple disputes or unreasonable interpretations of behaviour are not instances of harassment and can bog down the system if entertained too much. 

One example of how a harassment claim took things a bit too far took place at a Saskatchewan corrections centre. The incident in question happened as corrections officers at the institution decided to walk off the job in an illegal strike, leaving a skeleton staff of management for the entire institution. After discovering the officers’ plans, the director of the facility encountered a small group of corrections officers as they were about to walk off the job. He made the shape of a gun with his hand and made a comment that he had a bullet in the chamber for each of them. 

Most of the corrections officers who heard the comment and saw the gesture took it to mean their jobs might be in jeopardy if they proceeded with the illegal strike. However, one of them took it as a threat of physical harm. When the officers agreed to go back to work a few days later, this officer brought up the incident in a meeting and the director apologized if he offended anyone, encouraging an environment of reconciliation and moving on. 

The officer seemed to accept the apology but reported the incident to police. He also filed a complaint and the employer hired an independent investigator. Both the employer’s investigation and the police determined that the director made the comment and gesture, but a reasonable person wouldn’t interpret it as a threat of physical harm. 

So the officer filed a grievance but an arbitrator reached the same conclusion, finding that no-one else perceived the director’s conduct as threatening and it was clear in the circumstances of the impending illegal strike that the director was just disappointed and frustrated with how things were going. 

The arbitrator also noted that the complaining officer had indicated he was feeling pressured by his union to participate in the illegal strike and the director’s comment probably triggered an already-existing sense of being threatened. Given the attempts at reconciliation, the director’s apology, and the fact no-one else felt threatened, the arbitrator chalked the incident up as differences that could be settled without relying on formal processes for more serious instances of harassment — pointing out that not all examples of unwelcome actions or comments are serious enough to qualify as harassment. See Alberta and AUPE (Borrelli), Re, 2016 CarswellAlta 610 (Alta. Arb.). 

Workplace harassment needs to be taken seriously and employers should do as much as reasonably possible to eliminate it in their workplaces. However, how far should these efforts have to go? Should every complaint or dispute be treated as potential harassment? Perhaps a best practice would be to put in force alongside a clear anti-harassment policy a clear dispute resolution policy that can help employees distinguish between a dispute between two people who just don’t get along and a more serious charge of unwelcome, vexatious and inappropriate behaviour that constitutes harassment. 

Harassment can be a serious problem in a workplace, but so can frivolous accusations that escalate a normal dispute into something worse. 

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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