Requirements for conducting a workplace harassment investigation: lessons from the Green Party

Harassment in the workplace continues to be the human resources story that dominates the news. While cases like that of Harvey Weinstein and Charlie Rose often take centre stage, there are plenty of examples here in Canada.

Most recently, a workplace harassment investigation into allegations made against Green Party of Canada leader Elizabeth May concluded. The subsequent report and its findings provide an important reminder: personality conflicts and disagreement about supervisory conclusions are not (by themselves) sufficient to constitute workplace harassment.

In Ontario, the statutory test for workplace harassment requires “a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” Yet in the case of the May investigation, even when the allegations were accepted as true, they were insufficient to satisfy the statutory test.

The May investigation report gives an example of the type of conduct at issue:

[The alleged incidents of harassment]…appear to have been tense interactions between coworkers who did not get along, or situations where [the complainant] appears to have taken questions about his job performance personally. Because he saw no fault in his performance, he concluded that he was subject to an unjustified personal attack. People can and do have different expectations and views with respect to a person’s job performance, but criticisms directed at a person’s job performance do not meet the legal standard that is the focus of our investigation.

Another recent case, TLK v Serva Group Ltd, 2017 ABQB 173, further emphasizes that even where inappropriate conduct is established, management is not required to respond in the complainants’ preferred manner.

At issue was an employee who, when provided with the phone of a co-worker to cover his sales shift, discovered he had made disparaging remarks about her by email to other colleagues. These messages suggested that the employee, TLK, was a “crazy lady” and a “failure.”

TLK was upset after reading the messages and reported the situation to her supervisor. After reviewing the situation, the supervisor had the co-worker apologize to TLK. The apology was rejected by TLK as being insincere. Next the supervisor attempted to schedule a three-way meeting to address and resolve the conflict. TLK refused to participate. At this point, TLK went off work, provided a doctor’s note and started seeing a psychologist.

It appears TLK would only accept one outcome to her harassment complaint – to be scheduled to work away from her co-worker. When the Serva Group replied that this was not logistically feasible, TLK commenced a claim for constructive dismissal.

In the end, the Court rejected TLK’s claim and concluded:

There were no repeated incidents. Management of the employer responded appropriately to the problem as soon as it was made aware. There may theoretically have been further steps management might have done. Perhaps if enough people were moved within the workplace a separate office might have been found for T.L.K. Perhaps she could have shared Mr. Welsh’s office for a short period to allow reintroduction to the workplace. But both of these things would have shone a spotlight on the work arrangement changes and the reasons for them, and it is not at all clear that that would have been a healthy resolution for T.L.K, let alone the employer. I do not fault management for not pursuing resolution alternatives further.

The resolution of workplace issues does not have to be a perfect one from the perspective of the employee, just as workplace human rights accommodations are not required to be perfect. It is a reasonable accommodation, or reasonable resolution, that is expected of employers. And as mentioned, where the employer’s response is to take steps to re-assert its expectation that employees will treat each other with respect, there has been no repudiation of the employment agreement. [emphasis added]

Lessons learned

Any allegation of harassment in the workplace needs to be taken seriously. Not the least of which, employers should be mindful of the statutory duty to conduct a related investigation pursuant to section 32.0.7 of the Occupational Health and Safety Act. However, in the course of investigating allegations of harassment, employers must not automatically conflate the mere existence of disputes between co-workers, or disagreements over how allegations should be resolved, with a demonstrable “course of vexatious comment or conduct.” Disagreements, personality conflicts and general unpleasantness are simply facts of the working world.

This article was originally published on May 16, 2018 at First Reference Talks.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca