Monday, December 9, 2013

Harassment Reprisal Cases: What does it mean?

I recently posted about the case of Ljuboja v. AIM Group Inc., in which the OLRB concluded that it does have jurisdiction to inquire into an allegation that an employer engaged in reprisals in response to a harassment complaint.

Let's assume, for a moment, that this proposition of law holds the day.  What are the consequences for employers and employees?

For Employers

Employers have to have harassment policies and programs.  That's straightforward enough, and if you don't, you need to get that fixed.  Contact me at the link at the bottom for assistance.

While the AIM decision doesn't directly open the door to complaints of "You harassed me by imposing discipline!", I can imagine any number of scenarios in which it might indirectly result in an employer having to explain why they imposed discipline in a given circumstance.

Substantively, this decision shouldn't be too worrying - I doubt any lawyers were ever advising employers to 'go ahead and fire' an employee because of a harassment complaint.  OLRB jurisdiction to deal with the complaint or not, it never would have seemed like a good idea.

So for an employer who investigates and deals with complaints in good faith in compliance with the policy and program...well, that would appear to satisfy the employer's obligations (at the moment, at least).  But does that make you safe?

There are always four sides to any story:  My side, your side, the truth, and what the adjudicator finds.  Having clean hands is a good thing, to be able to avoid the appearance of having something to hide.

So here are a few tips for employers to protect themselves against allegations of improper reprisals:

(1) Implement a disciplinary policy, and enforce the rules consistently.

This is important for a whole range of reasons.  And a lot of employers - small employers, mid-size employers, institutional employers - are terrible at it.

One of the problems with inconsistent enforcement of the rules - the relevant issue in this context - is that when you start enforcing a rule you haven't previously enforced, or start disciplining one employee for conduct other employees get away with, the question arises of why, raising the spectre of employer bad faith, that you don't really care about this breach of the rules but you're using it because you have an axe to grind with this employee.

It's not at all uncommon to give 'good' employees a little more slack.  If I have a talented assistant who goes 'the extra mile' when needed, I'm less inclined to hold his or her feet to the fire for the occasional late arrival, or other marginal misconduct.  That's natural, and not entirely illegitimate.  But there are a number of risks that arise, including (a) that the employee's behaviour may shift, becoming less exemplary in other respects, or that the 'marginal misconduct' may increase (or that my tolerance of it may decrease) to the point that I can't tolerate it anymore, or (b) that another employee (who hasn't earned the same credit) may observe my tolerance, fail to appreciate the implied quid pro quo, and then feel that they're being treated unfairly when they start getting disciplined after an instance or two of the same misconduct I've tolerated from the talented assistant.

The perception of unfairness may well be unwarranted, but I may well be called upon to explain the difference in treatment (which is a bad thing - few employers want to have to air their decision-making processes in public, nor pay the legal fees associated with doing so), and moreover if the employee has a plausible other explanation (i.e. that my intolerance of their indiscretions is a sign that I'm building a case for cause in response to a harassment complaint), then I have to hope that the adjudicator prefers my explanation.

(2)  Have consistent and well-documented employee relations processes.

Here's something I've seen plenty of times:  An employer decides to restructure the workplace - dismiss employees, relocate a work site, modify an employee's duties, etc.  Then, before announcing the decision, something else happens that triggers anti-reprisal or anti-discrimination obligations - an affected employee becomes pregnant, becomes disabled, makes a complaint under a relevant statute, etc.

Sometimes there's a causal relationship, where the employee claims disability, or makes an OHS complaint, or - in this context - makes a harassment complaint, because they see the writing on the wall, and expect to be dismissed.  This isn't always the case; sometimes it's a coincidence.

But the very best defence to a reprisal allegation is to be able to lead correspondence between management personnel prior to the anti-reprisal protection being engaged.

And the second best defence is to be able to demonstrate a consistent and reasonable decision-making process leading to the decision alleged to be a reprisal.  You can't stop your business changes just because someone complains of harassment.  (See below for more on this.)

For example, imagine that I'm a manager, and I've engaged in a course of progressive discipline against an employee.  I made it clear to the employee that his job was on the line in the event of further misconduct.  And then the employee crosses the line again, and becomes aware that we're investigating the misconduct and determining how to respond.  The employee then makes a complaint that I'm harassing him.

It may well be best for me to 'recuse myself', so to speak, from the decision-making process in respect of the disciplinary matter.  Not strictly necessary in all cases, but it might make for better optics.  Either way, if there are already written records - say, emails between myself and HR - which predate the harassment complaint and make it clear that dismissal is a penalty under consideration, it's going to be much more difficult for the employee to successfully argue that a dismissal for subsequent misconduct was actually a reprisal.

(3)  Management is not for the faint of heart.

I don't subscribe to the 'military' philosophy of management - well, not in all circumstances - and I recognize that a good social rapport can be beneficial to a work environment.  But I do believe that managers need to be prepared to put their managerial responsibilities first, even though that can be a really hard thing to do for the subordinate who invited you to her wedding or who gave your child a favourite toy.

I have seen too many 'soft touch' managers who fail to appropriately deal with misconduct.  I'm not saying you can't be nice.  I'm not saying you can't make efforts to help employees deal with their challenges - quite the contrary, I think that positive and constructive efforts by management can play a major role in correcting workplace problems.  I am absolutely not saying that you should ream out your staff.

I've also seen too many managers, particularly (but not exclusively) in union settings who are conflict averse, giving in to employee demands or accepting employee misconduct because it's easier than risking a fight.

I believe that the best philosophy of management is "firm but fair".  There's a balance to be struck here.  Employee and labour relations are not things that management can wash its hand of; they need to be actively managed, and issues need to be addressed proactively.  That does not mean yelling and screaming.  It means that you need to have the hard conversations, try to find solutions, and make sure that employees are aware of the potential consequences of their actions.  And, if you're not sure if you're entitled to take action, seek legal advice.

What does this have to do with harassment policies and reprisals?  Simply this:  A complaint of harassment triggers reprisal protection, but this should not make you afraid to deal with the employee in a way which is fair and prudent under the circumstances.  If an employee makes a complaint of harassment, that doesn't get them a pass.  In fact, it's easy for me to imagine a scenario in which the complaint itself, due to inappropriate content or disciplinable non-compliance with the policy, might earn discipline.

I've said this before, albeit in a slightly different context:  "Yes, that's right, if I air a legitimate grievance, and then start into the name-calling, you should apologize to me for your actions that upset me in the first place, and at the same time impose discipline for my own inappropriate conduct."  This holds true in harassment complaints.  If somebody makes a harassment complaint in a completely inappropriate manner, then deal with the merits of the harassment complaint appropriately and in good faith, while separately dealing with the inappropriate manner of the complaint.

(4)  Make sure your harassment policy and program are meaty.

Small and mid-size employers don't like policies, and when they do have to implement policies, they often do it barebones, with lots of 'employer discretion'.  It's understandable - when you're running every aspect of the business, hands on, why would you tie your own hands with a policy?  They'd rather just deal with an issue as it comes up, in the way that makes the most sense at that time in respect of that issue.

There's a lot to be said for employer discretion.  But the more your policy tells you how a complaint is to be addressed, the less open you are (assuming you follow your policy) to an allegation that you responded to the complaint in bad faith.  Not only does it make a reprisal allegation less likely when you are seen to take the complaint seriously and address it in good faith, but it also lets you approach an adjudicator with clean hands, even where you find the harassment complaint to have been unsubstantiated:  It's harder for the complainant to say that you reacted to the complaint in an improper way when the record shows you doing everything that you were supposed to do.

(5)  Document everything.

When a harassment complaint comes in, alarm bells should sound.  When anything even resembling a harassment complaint comes in, in fact, alarm bells should sound.  (There's a surprising amount of case law already on what constitutes harassment, what constitutes a harassment complaint, etc., for the purposes of a reprisal allegation.  Suffice it to say that it's not necessarily the case that a harassment complaint needs to be exactly in the form set out by the policy.  If a reasonable person looking at it would understand it to be a harassment complaint, it's likely to be treated as such.)

From that point, the anti-reprisal obligation is clearly engaged, and everything that you do, you might be called upon to answer why you did it.  Which means firstly that you need to be able to establish what you did, and secondly that you need to have a rational basis for any such adverse actions.  That means rigourous record-keeping.

While I'm a fan of documenting most formal staff interactions, I understand that many employers don't wish to do so.  However, it takes on a whole new importance when there's an anti-reprisal obligation on the table.

For Employees

The impact of AIM on employees is a bit simpler.  It may provide a new avenue of recourse for dismissals and other harmful action by the employer, in certain circumstances, but whether or not that's available and/or the best course of action is going to be very fact specific, so the main takeaway for employees in relevant circumstances is:  Get legal advice.

However, no proposition of law is completely one-sided, and AIM might have negative effects on employee interests in certain circumstances.

Consider Shah-type constructive dismissals, where the employee takes the position that he has been terminated because he has been treated so poorly that it has poisoned the employment relationship.  Employers are occasionally taken completely off guard by such a claim, where an employee resigns and then sues in constructive dismissal because of alleged mistreatment that management either didn't know about or didn't realize was a concern to the employee.

Employers feel that this is unfair, and feel that they should be entitled to a chance to address the issue prior to having liabilities in wrongful dismissal.

But, up to now, employees have often had a cogent argument otherwise, and the Courts have tended to be fairly understanding with employees who, reluctant to rock the boat, sit quietly and take the abuse until they simply can't anymore.

In the wake of Bill 168 and the AIM decision, the employer argument may be significantly strengthened, generally speaking:  The employer created a process by which the employee could raise such concerns, and the avenue is reprisal-protected, meaning that the employee should be able to have them addressed without having to worry about management retaliation.  In a great many circumstances, I suspect employers will be able to argue that this results in an obligation on the employee to utilize the process before taking the position that they've been constructively dismissed.

Other New Developments

I was fortunate enough to receive a copy of that decision prior to it being published on CanLII, and in fact the OLRB publications on CanLII had fallen a bit behind.  But now they've caught up, and there are other relevant decisions to note.  So this is a bit backwards, but let's add three more pre-AIM cases, decided from October 31, 2013 to November 21, 2013 to the mix:  Abick v. Ontario; IBEW Local 353 v. Black and MacDonald Ltd; and Taylor v. Humber River Hospital.

All three involved preliminary objections based on Investia (i.e. that the Board has no jurisdiction to remedy reprisals for harassment complaints), all three were heard by different Board members (respectively, Vice-Chairs Rowan, Wacyk, and Lewis), and all three had the same result, following the general trend up to that point to conclude that Investia was not dispositive of the matter, and therefore didn't warrant dismissal of the proceeding at that stage.

So it's nothing particularly new, but it underlines the Board's reticence, by and large, to follow the proposition in Investia.  As I said before, I hope and expect that AIM will hold the day.  We will see.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

1 comment:

  1. Employees should have freedom, but they should not be allowed to misuse that freedom. Employees can be tracked for their activities. This will also help the management and also the employees.