More than 2 years after Ontario’s Bill 168, has anything changed?
Bullying is a big issue in workplaces — to the extent that many organizations have developed strict procedures regarding how they deal with harassment and violence in the workplace. But do these procedures actually result in a safer workplace — or does their strictness cause employers and managers to feel required to “pull the trigger” escalating these situations to full-blown investigations?
Sometimes, small conflicts escalate into larger ones when the formal investigation process is triggered, perhaps involving an external investigator who investigates and prepares a report with findings of fact that may or may not validate the complaint.
These reports may also contain recommendations, but ultimately it is up to the employer to decide what action to take — if any. Often, the report is less than conclusive about any violations of the workplace policies, and the problem stays unresolved. The employees involved must often go right back to working together again, setting the stage for a repeat of the original conflict — or worse.
We have seen this at times in the wake of Ontario’s Bill 168, which became law in June 2010. This legislation requires employers in the province with more than five employees to devise workplace violence and harassment policies, develop programs to implement such policies, and engage in assessments to measure the risk of workplace violence.
Human resources and safety professionals called in to resolve these workplace issues need to know something about the dynamics involved, and how to achieve good outcomes.
Experience working with employers to help them resolve workplace violence and harassment issues has found that problems with physical violence in the workplace are relatively rare or, if they arise, are easier to manage. Harassment or perceived harassment is more common — often subtle, based on the perception of what was said or wasn’t said, but able to poison workplace relations and be a serious drain on productivity.
Avoid conflict situations through effective training
As with many problems, one of the best ways to deal with it is to find ways to avoid it in the first place. What often stands in the way is a skills gap, particularly around front-line supervisory staff not knowing how to deal with workplace conflict. The most typical response is to avoid the situation, which rarely makes things better.
While some employers have set up a training program in conflict resolution, in many workplaces the “training” is limited to an annual presentation that describes the organization’s violence and harassment policy, and gives some examples of off-colour jokes or comments and behaviour that could be considered “harassment.”
It is better to use the opportunity for training to press for truly effective skills development around recognizing the causes and signs of conflict among employees, and developing ways to defuse conflict.
This should focus on learning active listening skills, to foster better understanding of those with whom we may otherwise find ourselves in conflict. Context specific conflict resolution skills can be taught.
If the problem is harassment from a client or customer across a service counter, for example, this is different from the same kind of harassment over the phone in a call-centre cubicle. Conflict between employees is even more complex and potentially poisonous for the workplace.
Design policy wisely
Most policies indicate in the event of conflict, efforts should first be made to resolve the issue “informally,” through steps such as having the parties involved sit down and see if a resolution can be found. If this does not work, a formal process of investigation is triggered in which an independent or external resource is called in to do interviews with the affected parties and anyone else involved, and prepare a report determining if harassment has occurred.
What often happens is both sides of the conflict pull in supporters, until the workplace is polarized. In many cases, the report generated is inconclusive, without clear findings of wrongdoing or recommendations for action. It is not enough ammunition to justify termination and offers little practical value, so no effective action is taken.
Experience has found escalation to a formal process is more likely in situations where the person designated to deal with conflict situations is not in a position to take effective action at the early stages. This may be because this person does not have the skills or authority to carry out an effective informal process. They’re often motivated to move the problem off their desk by “pulling the trigger” on the formal process and commencing an investigation.
Therefore, it’s extremely important to write the organization’s policy in such a way that the trigger does not get pulled too soon — before an effective informal process has had a chance to do its work.
At the same time, it is important to make it clear the informal part of the process is not an attempt to push the problem under the carpet, and the people managing this informal process have the necessary skills.
Consider a still-all-too-common dynamic — a female employee feels harassed by a male supervisor. If she feels the “informal” part of the process is just an attempt to push her concerns aside, she may believe her problem is not being taken seriously. However, if the policy clearly indicates an informal reconciliation hearing or mediation is part of the procedure, she may be more willing to participate.
The result of good training and good access to support is a workplace with reduced conflict, and an effective means of dealing with problems that do occur.
John Curtis is a lawyer based in Kingston who has a mediation and ADR practice and worked as an adjunct lecturer in ADR at Queen’s University Law School. Contact him at [email protected], 613.328.4015 or visit www.johncurtis.ca.
