Managing is not bullying

Employees cannot characterize any negative interaction with a supervisor as bullying

Stuart Rudner

By Stuart Rudner

Workplace bullying has become a hot topic, with media frequently reporting alleged incidents and increasing numbers of claims threatened and filed by employees. It is much like the issue of sexual harassment 15 or 20 years ago — it had been going on for years but, as a society, we decided to address and condemn it.

It is extremely unlikely workplace bullying is more prevalent today than it was in the past. However, people are more aware of their rights, stronger laws exist to protect individuals and, as a result, the issue is less likely to be ignored.

Employers cannot afford to bury their heads in the sand, dismiss complaints as “personality conflicts” and otherwise ignore the issue. They have an obligation to take reasonable steps to provide a workplace safe and free from harassment and bullying. This is true pursuant to common law and has also been entrenched in legislation such as Bill 168 in Ontario. Bullying behaviour is not to be tolerated or condoned.

That said, employers are still entitled to manage their workforce. This includes supervising, reviewing, criticizing and even disciplining employees. There is a significant difference between managing and bullying. Unfortunately, some employees, perhaps given a false sense of security through media coverage of anti-bullying efforts, have attempted to characterize any negative interactions with their superiors as bullying.

In the recent case of Amodeo v Craiglee Nursing Home Limited, the complainant social worker claimed a director harassed her by repeatedly telling her to document conversations with residents’ family members and raising other concerns regarding her performance. She received a written warning as a result of these concerns. The complainant then sent an email to members of senior management complaining about the director’s treatment of her.

Shortly thereafter, her employment was terminated.  She then filed a complaint pursuant to the Occupational Health and Safety Act, alleging the dismissal was a reprisal for her allegation of harassment.

The complaint was rejected by the Ontario Labour Relations Board, which made a very important comment: "The workplace harassment provisions do not normally apply to the conduct of a manager that falls within his or her normal work function, even if in the course of carrying out that function a worker suffers unpleasant consequences."

Employees cannot shield themselves from negative reviews, coaching, constructive criticism and the like through anti-bullying initiatives. Furthermore, there is no law that says employers have to be “nice” or friendly. Some bosses are of the no-nonsense variety, and that is not bullying. Yelling, swearing and berating your staff publicly, on the other hand, is generally offside.

Video on bullying

I was interviewed in a Google+ Hangout this morning by Joanne Royce, principal of Royce & Associates, on the topic of bullying in the workplace.

Stuart Rudner is a leading, Toronto-based HR lawyer and a partner in the labour and employment law group at Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (416) 595.8672 or [email protected]. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.

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