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Feb 28, 2012

Harassment or personality conflict?

There can be a fine line between employees who just don’t get along and escalation into harassment
    

By Jeffrey R. Smith

When an employee complains about harassment in the workplace, the employer needs to sit up and take notice.

Numerous cases have established that, in the event of a harassment complaint, immediate action should be taken to address the situation. Failure to do so can cause legal headaches, not to mention the problems associated with a poisoned work environment.

Sometimes the obligation to take action can exist even in the absence of a formal complaint. If the employer is aware or hears rumours of harassment in its workplace, it turns a blind eye at its own risk — legally and at the expense of productivity.

But what actually constitutes harassment? When different people are lumped together in the same place for several hours a day, there are bound to be conflicts. And those conflicts can be handled in different ways. Sometimes, arguments can happen, even escalating into shouting matches. Naturally, these types of interactions can leave people feeling distressed. But is that harassment? If two employees don’t get along and, over a period of time, have a few run-ins, how should the employer handle it? What if one of the employees files a harassment complaint? What if both do?

Last month, the Ontario Labour Relations Board dismissed a high school teacher’s harassment complaint after the teacher had issues with the way two colleagues acted at work and gossiped about another teacher. On more than one occasion, the teacher had arguments with them, including one where one of his colleagues shouted at him. However, the board found none of the colleagues’ behaviour was directed specifically at him and just because their unprofessionalism offended the teacher, it didn’t qualify as harassment.

Ontario’s Occupational Health and Safety Act (OHSA) defines workplace harassment as “engaging in 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.”

Other jurisdictions have similar definitions. Arguments or rude behaviour aren’t serious enough to the point where it would fall under this definition, unless there is an element of discrimination based on a protected ground.

Where there is some acrimony between employees, an employer should probably keep an eye on the situation and take steps to ensure things don’t flare up into something serious. But if something does happen, what is the line where a personality conflict moves into the realm of harassment?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com. 

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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Exposure to liability
Wednesday, February 29, 2012 9:01:00 AM by Jeffrey R. Smith
It doesn't matter who's doing the harassment, if a complaint is filed, the employer is obligated to investigate and act. A lot of harassment is by superiors to their subordinates. Though it may be difficult when the executive director is involved, HR has to make it clear that the company is being exposed to human rights or constructive dismissal lawsuits that could result in big payouts, depending on various factors. This is even more important if HR receives multiple complaints or is aware of what's going on.
What if the harassment is from top management?
Tuesday, February 28, 2012 7:09:00 PM by Suzanne Sheehan
Hi, what happens when it is the Executive Director who is harassing employees (other managers and staff)? She has a bullying complaint against her and has driven out 2 managers (myself included); the ED seems to think she is beyond reproach and is creating a toxic work environment.
Thanks, Suzanne