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How to deal with romance in the workplace • What impact do collective agreements have on workplace harassment policies?

How to deal with romance in the workplace

As an employer, I am unsure of how to deal with office romances. Do I have any obligations to institute workplace policies for romances between co-workers? Should I consider drafting a corporate policy that specifically addresses this issue?

Answer: The term office romance implies the relationship between the parties is consensual. Accordingly it is important to distinguish between how an employer should deal with an office romance as opposed to a situation involving sexual harassment. Federal and provincial human rights legislation prohibit sexual harassment in the workplace. But while instituting a binding corporate policy with respect to sexual harassment is advisable for all employers, it may prove impractical to institute some form of policy to regulate co-worker romances.

If the liaison in question is an office romance that is consensual, the employer’s only concern is how the relationship may impact upon business operations. Office romances tend to fall under one of three broad categories: manager-subordinate; co-worker-co-worker; and employee-customer or supplier. The most problematic relationships are those between a manager and a subordinate, and those between an employee and customer or supplier. These relationships have the most potential to adversely impact the operations of the company. An office romance between co-workers is usually less problematic.

Relationships between managers or executives and employees invariably involve an underlying power imbalance between the parties. In most cases this power imbalance will be difficult to overcome, creating a conflict of interest situation.

The presence of a power imbalance within a relationship also increases the risk that a sexual harassment complaint can be successfully launched against the manager or executive and the company in the event the relationship turns sour. If you become aware of a manager or executive who is determined to engage in a consensual intimate relationship with a subordinate, it is advisable for you to discuss the option of one of the parties changing jobs.

A relationship between an employee and a customer or supplier is also quite problematic. This type of relationship will usually affect the employee’s ability to make decisions in the best interests of the company. If you become aware of such a relationship, advise the employee to declare the conflict to the customer or supplier and then to remove themselves from the work relationship. A policy which deals with conflicts of interest generally, either actual or apparent, can and should also be instituted as a means of dealing with the potential problems which may result from this type of a relationship.

A romance between co-workers is generally the least risky within the work environment because there is an absence of a power relationship. But with less risk attached to such relationships, employees become less conscious of hiding them. Employee conduct in the workplace may then fuel gossip. Office gossip is disruptive, damaging to reputations and may adversely affect the corporate culture.

Generally workplace relationships are not grounds for termination of employment. To constitute cause for dismissal, the employer must prove the consensual relationship has had an adverse impact on the company’s operations to the extent the employee’s actions can be considered a breach of the employment contract. From a strictly legal perspective it is advisable to discourage office romances. But, with human nature being what it is, instituting a formal corporate policy may prove to be impractical.

What impact do collective agreements have on workplace harassment policies?

We are an employer with both unionized and non-unionized employees and we are in the process of instituting a workplace harassment policy for all our employees. What impact, if any, will the collective agreement of our unionized employees have on the workplace harassment policy?

Answer: If your employees are unionized the applicable collective agreement may contain clauses that deal with harassment. Employers should be aware of and familiar with such clauses. If the collective agreement contains an anti-harassment clause, the employee will be entitled to file a grievance against her employer or another union member. If the collective agreement does not have an anti-harassment clause, the employee will be unable to file a grievance based on harassment alone. Alternatively the unionized employee may be able to challenge any discipline or firing if the harassor has abused his authority in order to make things difficult for the employee. The unionized employee may also be able to grieve the harassor’s behaviour if it qualifies as workplace misconduct or if it violates any other sections of the collective agreement.

In the event the union fails to respond to the employee’s allegations of harassment, the employee may still make a complaint under the applicable human rights legislation. But it is possible the human rights commission may decide not to deal with such a complaint if the subject matter of the complaint is covered under the collective agreement.

Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected].

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