When the balance of power shifts due to harassment
Question: If a subordinate employee harasses or bullies a supervisor, are there any ways the matter should be handled differently than the reverse situation?
Answer: Harassment and bullying are actionable forms of workplace misconduct. The essential employer duties for handling harassment and bullying are analogous regardless of who engages in the misconduct. However, employers should be aware of distinctions created by differing context of bullying or harassment by subordinates.
Wrongful conduct by a supervisor, including harassment or bullying, is exacerbated by their position of authority: see Canada Safeway Ltd. v. U.F.C.W., Local 401.
When a supervisor is harassed or bullied by an employee under her purview, the employer must assess the complaint in light of the broader context, including: previous or ongoing issues between the complainant and the alleged harasser; the possible job performance implications of a supervisor who is harassed by a subordinate; and the potential that the alleged harasser has harassed other peers or subordinates.
In Alberta, for example, harassment may be prohibited by the employer’s policy, the Human Rights Act or the Occupational Health and Safety Act. In particular, the Occupational Health and Safety Act outlines the relative duties of employers, supervisors and employees in the harassment context:
• Employers are obligated to ensure that none of the employer’s workers are subjected to or participate in harassment.
• Supervisors are obligated to ensure that none of the workers under their supervision are subjected to or participate in harassment.
• Workers must refrain from causing or participating in harassment.
The individual who receives the report of harassment or bullying and the manager of the victim of the wrongful conduct are in positions of authority regarding the investigation and resolution. Employers must be aware of potential liability for inaction following reports of harassment and bullying.
Employers must implement internal policies, investigate harassment complaints and ensure that the complainant does not experience adverse impacts from reporting the incident. Adverse impacts — which may range from additional harassment to wilful blindness or a poisoned work environment — are characterized as reprisal for enforcing a right. Reprisal is inconsistent with the purpose and protections of the Occupational Health and Safety Act: see Ljuboja v. Aim Group Inc.
The failure to investigate and address harassment concerns may be serious enough to justify damages for constructive dismissal or even Wallace damages for pain and suffering in egregious cases: see Boucher v. Wal-Mart Canada Corp.
When the accused harasser is a subordinate of the complainant, the employer must be alive to the potential relationship intricacies when conducting its investigation and resolving the issues.
For more information see:
• Canada Safeway Ltd. v. U.F.C.W., Local 401,  A.G.A.A. No. 38 (Alta. Arb.).
• Ljuboja v. Aim Group Inc., 2013 CanLII 76529 (Ont. Lab. Rel. Bd.).
• Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (Ont. C.A.).
Tim Mitchell practises management-side labour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or firstname.lastname@example.org.