There can be a fine line when it comes to what is workplace bullying and what is not workplace bullying. Sometimes an argument in the workplace is just simply that, an argument. Employees and employers can have arguments in the workplace without the entanglements of bullying or harassment. We have had many clients over the years (both employers and employees) who have had to confront the issue of workplace bullying or workplace harassment.

Employees are often in a distressed emotional state when confronted with these issues as it can be very difficult to be the target of bullying in the workplace. In fact, it is not unusual that employees need to go on stress leave due to mental health concerns because of being subjected to workplace bullying. Alternatively, employers can also be distressed because they do not know or understand how to confront or stop workplace bullying or what to do when they are in receipt of a complaint about workplace bullying from an employee.

It is when arguments or other difficult discussions at work cross the line into workplace bullying that is the subject of this blog. In this blog we look into what is workplace harassment in the context of employment law. We then examine what are some examples of when arguments or conflicts in the workplace become workplace harassment and what legislative protections exist to protect employees against workplace harassment and bullying. Finally, we investigate when workplace harassment becomes constructive dismissal and how reprisals may also arise within the context of workplace harassment.

What is workplace harassment?

A simple argument is not automatically workplace harassment. Employers can have discussions or conversations with employees (or amongst colleagues as well) in the workplace related to workplace matters and these conversations may not necessarily always be pleasant. They can be, in fact, quite difficult or uncomfortable. Employers are allowed to give negative feedback to employees, criticism or address performance issues without these things being labelled as harassment. It is when these discussions or arguments become inappropriate, offensive, humiliating or vexatious to the employee that it may be workplace harassment.

Specifically, workplace harassment or workplace bullying occurs when an employee is a target of ongoing offensive conduct by one or more people in the workplace such as the employee’s colleague, supervisor, manager or employer. According to the Occupational Health and Safety Act, 1990 (“OHSA”), workplace harassment is defined 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.”

What are some examples of when arguments or conflicts at work become workplace harassment?

The following are some common examples of when arguments or conflicts at work may be considered to be workplace harassment:

• calling the employee inappropriate names, slurs or insults;
• inappropriately yelling at the employee or using profanity directed at the employee;
• spreading malicious gossip or rumours about the employee;
• purposely ignoring the employee by not answering emails or refusing to include the employee in meetings or work-related discussions;
• intentionally “ganging up” against the employee through a coordinated effort to exclude them or belittle them in the workplace;
• tampering with the employee’s personal property at work or purposely damaging the employee’s work equipment or supplies;
• refusing to provide the employee with certain information or details that are needed to perform work-related tasks or responsibilities;
• refusing to provide the employee with training necessary to perform work-related tasks or responsibilities;
• invading the employee’s personal space or inappropriately touching the employee’s body;
• physically assaulting or abusing the employee;
• stalking, spying, pestering or following the employee around the workplace;
• making unwanted sexual comments or sexual advances directed at the employee;
• making snide or sarcastic comments directed at the employee;
• making constant criticisms directed at the employee or belittling the employee’s opinions or beliefs;
• making little “jokes” or inappropriate or rude statements directed at the employee;
• giving the employee mixed instructions and setting up the employee to fail in their workplace duties or responsibilities;
• sending the employee rude or degrading messages over email or text message; or,
• posting rude or degrading posts on social media or on the internet about the employee.

Legislative Protections Against Workplace Harassment

Ontario’s OHSA sets out that all provincial Ontario employers are subject to Ontario’s OHSA and must a) prepare policies with respect to workplace harassment and b) have in place a workplace harassment program. Generally, under the OHSA an employee should know how to make a complaint about workplace harassment, the employer should investigate appropriate complaints of workplace harassment and inform the employee of the results of that investigation in writing.

For more information about workplace investigations, we invite you to read our blogs entitled 6 Key Elements of Procedural Fairness in Workplace Investigations and What You Need to Know About Workplace Investigations.

Also, Ontario’s Human Rights Code, 1990 (“Code”) disallows individuals from being discriminated against based on certain prohibited grounds (age, race, disability, sexual orientation, gender and others). The Code applies to many areas of employment including hiring, training and employee dismissals. Further, if workplace harassment includes discrimination based on a prohibited ground under the Code, the employee may make an application to the Human Rights Tribunal of Ontario (“HRTO”). The HRTO has a hearing and application process that can resolve claims of workplace harassment under the Code. The OHSA also contains references to workplace sexual harassment.

When Workplace Harassment Becomes Constructive Dismissal

Workplace harassment also may result in constructive dismissal. Constructive dismissal  occurs when an employee’s fundamental terms of employment are changed unilaterally by the employer, if the employer evinces an intention not to be bound by fundamental terms or if the employee is subjected to some sort of illegal act such as harassment or a toxic work environment.

How the employee leaves the workplace is not crucial to the analysis when it comes to constructive dismissal. What is crucial is that the employee’s employment will usually be impacted to the point where it would be unreasonable to stay or to accept the fundamental changes to their employment. The employee may have been forced to quit or could have been terminated by the employer, but in both situations the employee may still be constructively dismissed. The law in Ontario is that in cases of workplace harassment, the employee could have been forced to quit as it may be unreasonable for them to continue to work under those toxic workplace conditions.

Finally, if constructive dismissal is established, the employee may claim termination pay and severance pay in addition to other possible damages stemming from workplace harassment. For more information about constructive dismissal, please see our blog entitled What You Need to Know About Constructive Dismissal.

What About Reprisal?

Reprisals often can be found in the context of workplace bullying. Simply put, a reprisal occurs when the employer intimidates, threatens and/or terminates or penalizes their employee because the employee asserted or attempted to assert their rights under a particular legislation. This is true in the case of Ontario’s Employment Standards Act, 2000 (“ESA”), under the OHSA or the Code. For example, it would be a reprisal if an employer moved to terminate or punish an employee for having made a complaint related to incident of workplace harassment under the OHSA.

The Code also prohibits reprisals against employees related to incidents of workplace harassment. For example, section 8 of the Code states that every person has a right to claim and enforce their rights under the Code, to institute and participate in proceedings under the Code and to refuse to infringe a right of another person under the Code, without reprisal or threat of reprisal for so doing.

Further, the employee who was subjected to a reprisal may retain their own lawyer and may claim that they have been constructively dismissed by their employer. Please see above for more information on constructive dismissal. Again, as set out above, if constructive dismissal is alleged, the employee will claim termination and severance pay in addition to other possible damages stemming from the possible workplace harassment.

For more information about the legal concept of reprisal, please visit our blog, What is a reprisal?

How can Zeilikman Law Help!

Approaching an employment lawyer can be very valuable to an employee who is experiencing workplace harassment or an employer facing a complaint related to workplace harassment. Employment lawyers like the ones at Zeilikman Law can assist an employee or employer by reviewing the facts of the matter and helping either party determine what the next best steps are to take to ensure that their employment rights are protected or reduce the risk of litigation.

To read more about employment law and workplace harassment, bullying or discrimination, please review our blogs:

• Is Subtle Bullying Workplace Harassment? What Ontario Law Says
• I Am Experiencing a Toxic Work Environment. What Should I Do?
• Harassment and Bullying in the Workplace?

You can contact our office at (905) 417-2227 or here to schedule your own confidential consultation with Zeilikman Law.