This disturbing message was delivered to me last week by a manager who had just completed my seminar on workplace harassment prevention:
“After learning all this, Andrew, I am afraid to manage my employees anymore. It seems like any discipline I impose or any constructive criticism I offer can be construed as harassment and will be used against me by an employee. This new law really ties my hands as a manager of people.”
Have you heard yourself expressing exactly the same concerns? Are your managers and supervisors afraid to manage for fear of reprisal by an employee? Any regulatory scheme—like the changes under Bill 168—often has the unfortunate side effect of causing the people affected by it to feel disempowered.
Let’s take look at what is NOT workplace harassment.
Harassment is defined as being a course of vexatious comment or conduct that, among other things, you ought to know is unwelcome. Vexatious means, to be annoying or distressing.
Workplace Violence and Harassment: Understanding the Law explains that the normal duties of a supervisor do not constitute harassment, even when the actions result in unpleasant consequences for the employee. It is not harassment when a supervisor assigns employees to duties, evaluates performance, enforces workplace policies or imposes discipline as long as he or she does so respectfully and fairly.
You are entitled to have disagreements with your employees, as well as having opposing points of view; this does not constitute harassment.
The common law concept of employer prerogative, or right to manage, has been upheld in Ontario Human Rights Tribunal decisions. In one such case, the tribunal clarified that the employer is legally entitled to manage the workforce and to utilize processes, procedures and tools to accomplish its objectives. In this particular case, the employee complained that his supervisor was using a “work log” to discriminate against him because of his disability, and objected to its use. The tribunal agreed that the employee had every right to disagree with management procedures and to discuss those disagreements with the employer. However, “at the end of the day an employee needs to work in accordance with rules and practices as established by his employer.”
Managers attending my workplace harassment prevention workshops often express concern about the level of control they are legally permitted over the activities of their workers. I am frequently asked by workshop participants about the extent to which a manager can control socializing in the workplace, especially where that socializing means employees are not doing their work.
The case cited above addresses this issue in terms of management rights. The employee in this case also complained that he was being harassed because his supervisor told him he spent too much time talking with his co-workers instead of doing his work. The tribunal made it clear that where management has a perception that a worker is not completing work as assigned, the employer has the right to raise the issue with the employee.
This case contains an interesting detail of particular interest to managers who feel harassed by anti-harassment policies. The tribunal heard evidence that the supervisor in this case was coached because she needed to improve her approach when talking with employees about their performance. Her lack of interpersonal skills, however, did not constitute harassment. So, you’re allowed to be less than perfect without being guilty of harassing your employees.
The message:
Just because an employee accuses you of harassment doesn’t mean you are guilty. Employees have the right to raise concerns and to have them addressed via due process. Try to view the complaint process as a perfect venue for the exchange of ideas toward creating a more respectful workplace.
Andrew Lawson
Human Rights Advisor, Learn Don’t Litigate
www.learndl.ca
Andrew Lawson
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