Legitimate criticism or verbal harassment?

The difference between criticizing an employee and verbal harassment

Question: When a supervisor in a unionized environment criticizes or speaks to an employee in a manner she doesn't like about her job performance, can the employee claim harassment? What actually does constitute verbal harassment?

Answer: Harassment generally includes “words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness.” This general standard may be altered by statute or the terms of a collective bargaining agreement.

While this would seem to include a wide scope of potential verbal harassment, arbitration cases have established some important limits on its application.

In particular, an employee may not generally claim harassment based merely on the good-faith exercise of legitimate management rights. These rights include the right to evaluate an employee for work-related purposes, even where a supervisor’s manner of carrying out that evaluation shows some bad judgment or insensitivity to the employee’s interests.

Where a supervisor has been found to have verbally harassed an employee, it has been based either on a single comment which violates human rights legislation or on an extended pattern of conduct. This can involve unfairly singling out an employee for unjustified criticism and criticizing the employee in front of her peers such as to isolate the employee in the workplace.

Moreover, the standard of the expected effect of the supervisor’s words is based on a reasonable assessment of those words, not just the employee’s subjective perceptions. Any issue of harassment is entirely separate from a determination of whether the employee sincerely believes she has been injured by the supervisor’s conduct. Even where an employee becomes frustrated or ill as a result of criticism, this does not necessarily result in a finding of verbal harassment. Instead, while taking into account the subjective impressions of the employee, an arbitrator must assess objectively whether the supervisor’s words rise to the level of harassment.

Based on these principles, a supervisor’s critical comments about an employee’s job performance will not generally be construed as harassment in the absence of some aggravating factor. However, even if an employee’s likelihood of success in a grievance based on verbal harassment is low, supervisors should be careful in their delivery of critical comments to employees.

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or [email protected].

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