Disagreements, personality clashes, insults, and shouting matches – are all of these examples of harassment? some? none?
Conflict in the workplace can take many forms and it is not always obvious which behaviour qualifies as harassment. When an arbitrator, mediator or workplace investigator deals with allegations and/or incidents of harassment, they consider both legal statutes and previous arbitration and/or court decisions to determine whether a given workplace scenario involves harassment, or rude behaviour, or simply the kind of conflict that can occur when people with different personalities are in close proximity.
Legal Factors Considered by Arbitrators, Mediators and Workplace Investigators in Dealing with Harassment
A. Foundational Jurisprudence: Robichaud v. Canada (Treasury Board),  2 SCR 84, 1987 CanLII 73 (SCC) (“Robichaud”)
Robichaud is a Supreme Court decision which is oft-cited for having clearly established that employers are liable for the human rights violations of their employees.
As well, specifically in BC, section 5.1(1)(a)(ii) of the Workers Compensation Act, RSBC 1996, c 492 stipulates that employees are entitled to compensation for mental disorders caused by workplace harassment. In other words, employers are also liable for harassment that causes an employee to suffer a mental disorder (such as depression or anxiety).
B. Connection with Human Rights Legislation Against Discrimination
Given the employer liability recognized in Robichaud, it is important to examine when harassment qualifies as a human rights violation. These instances would include scenarios where the person being harassed has a quality protected by human rights legislation (such as sexual orientation, gender identity or expression, age, race, or sex) and the harassment is connected with/based on that quality. For example, Hashimi v. International Crowd Management (No. 2), 2007 BCHRT 66 (CanLII) was a matter that involved the harassment of an employee via racial slurs by his co-workers. These forms of harassment amounted to discrimination and the employer was held liable and ordered to pay $10,000.00 for injury to the employee’s dignity, feelings and self-respect.
While there is no direct equivalent in British Columbia’s provincial human rights legislation, section 65(2) the Canadian Human Rights Act, RSC 1985, c H-6, shields employers from liability for their employee’s discriminatory conduct “if it is established that [the employer] did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof”.
In North Saanich (District) and CUPE, Local 374 (Ferrie), Re, 2011 CarswellBC 4019, (“North Saanich”) the grievor alleged multiple instances of harassment by their supervisor over the course of years. Before finding that the employer had “taken the allegation of harassment seriously and [sought] to minimize future problems in this area” (including the introduction of a “Respectful Workplace Policy”), the arbitrator reviewed previous arbitral synopsis outlining “the necessary elements required upon which to make findings of harassment at law. [The previous arbitrator] succinctly articulated the concept of wrongful personal harassment within the context of real-life human behaviour and proclivities [having observed that]:
Harassment, like beauty, is a subjective notion. However, harassment must also he viewed objectively. Saying this does not diminish its significance. It does, however, accentuate the difficulty of capturing its essence in any particular circumstance with precision and certainty.
For example, every act by which a person causes some form of anxiety to another could be labeled as harassment. But if this is so, there can be no safe interaction between human beings. Sadly, we are not perfect. All of us, on occasion, are stupid, heedless, thoughtless and insensitive. The question then is, when are we guilty of harassment?
I do not think that every act of workplace foolishness was intended to be captured by the word “harassment”. This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there has been a heedless disregard for the rights of another person and it can be fairly said “you should have known better”.”
The arbitrator in North Saanich went on to conclude that among the multiple allegations there was a “minor incident” that did qualify as harassment which had involved the supervisor telling the grievor to “grow up and be a man” in a loud and angry voice.
Whether behaviour rises to the level of harassment is dependent on the specific facts of a situation. Employers are liable for employee’s human rights violations, including harassment of other employees. Some legislation provides exemptions from liability where the employer does not condone – and takes steps to prevent – discriminatory acts by their employees. While previous arbitration decisions provide a general description of harassment, the need for expert assistance is increased by the reduction in certainty as to what qualifies as harassment given the absence of (a) harassment-specific definition(s) in BC’s employment-related legislation.
Determining whether there has been workplace harassment is done on a case-by-case basis by arbitrators, mediators and workplace investigators who have knowledge of, and experience applying, the law and legal precedents. For information on how to appropriately address incidents or allegations of harassment at your workplace, please contact Neil Hain for a consultation.