With the enactment of Bill 168in June, 2010, Ontario employers, including
charities and not-for-profits, are subject to legal duties to develop and maintain
policies and programs to address workplace harassment and violence. However,
employers and employees still face issues as to what types of behaviour or
incidents are “harassment”, as opposed to legitimate management conduct. In
the Ontario Labour Relations Board (the “Board”) decision in Amodeo v. Craiglee
Nursing Home Limited, the Board provides guidance as to what is and is not workplace harassment.
This Charity Law Bulletin discusses this decision and its implications
B. THE FACTS
Marianne Amodeo was employed as a social worker at
Craiglee Nursing Home (the “Home”) from October 2009 until June 2010. In April
2010, Ms. Amodeo alleged that during the course of a meeting to discuss a
resident’s treatment plan, the Director of Care for the Home “shouted at her.”
Subsequent to that meeting, Ms. Amodeo was issued a written warning for failure
to cooperate with the Director of Care and the then Administrator of the Home.
Although Ms. Amodeo insisted she did not know about the letter until four
months after her dismissal, she still considered the written warning a “form of
In June 2010, the Home hired a new Administrator, Angela
Heinz, who informed Ms. Amodeo that she was to “document and keep on file every
conversation she had with a resident’s family”, for the purposes of any
lawsuits that may be brought against the Home.
At a subsequent management meeting, Ms. Amodeo raised the issue about the
difficulties she had in “keeping up” with the work. Ms. Heinz reportedly responded
by advising Ms. Amodeo that she needed to “work harder and to work extra hours
if necessary”, and informed Ms. Amodeo that if she was incapable of completing her work on
time, she could face suspension. In response, Ms. Amodeo proceeded to email
her concerns about Ms. Heinz to various senior management representatives. Ms.
Amodeo was terminated from her position shortly thereafter.
Ms. Amodeo suspected she was dismissed because the Home’s
management believed she would report alleged resident abuse to the Ministry of
Health and Long Term Care.
In response to her termination, Ms. Amodeo made an application to the Board
under section 50(1) of the Occupational Health and Safety Act (the
“Act”), alleging she was dismissed for raising workplace harassment
complaints. The Board dismissed the application on September 19, 2012, finding
that Ms. Amodeo did not establish that the Home engaged in workplace
harassment. Ms. Amodeo then applied to the Board for a reconsideration of that
decision, which request was dismissed by the Board on February 28, 2013.
C. WHAT QUALIFIES AS WORKPLACE HARASSMENT?
Workplace harassment involves “engaging in a course of
vexatious comments or conduct against a worker in a workplace that is known or
ought reasonably to be known to be unwelcome.”
It includes comments that “demean, ridicule, intimidate or offend”; the
circulation or display of “offensive pictures or printed material; bullying and
sexual suggestions or advances.”
However, workplace harassment will not be found to occur in circumstances where
an employer, or employee tasked with overseeing other employees, ensures rules
are being complied with.
Individuals may perform their managerial positions poorly, and employees may
suffer “unpleasant consequences” in the process, but this does not necessarily mean workplace harassment has
Importantly, the Board confirmed:
The workplace harassment provisions do
not normally apply to the conduct of a manager that falls within his or her
normal work function, even if in the course of carrying out that function a
worker suffers unpleasant consequences.
The worst that can be said of what
happened is that Ms. Heinz made a blunt, unflattering assessment of the
applicant’s performance and demanded in no uncertain terms that she fulfill
management’s work expectations or risk discipline.
The Board further decided that the Director of Care’s
demands to document discussions with family members, and warning Ms. Amodeo of
the consequences if she was unable to keep up with the workload were not a
“vexatious course of conduct or comment”, and therefore were not workplace
As the Board determined that no workplace harassment
occurred, the complaint was dismissed. The Home did raise additional grounds
in its defence. In particular, it took the position that the Board did not
have the statutory authority under the Act to deal with reprisal complaints as
a result of workplace harassment. While the Board decided it was not necessary
to address that jurisdictional issue, other Board decisions have held that the
Bill 168 amendments do not provide it with jurisdiction to deal with
employee terminations arising from alleged harassment. Therefore, it appears
that the only employer obligations relating to harassment under the Act that
can be the subject of Board review pertain to employer obligations to have
workplace harassment policies and programs in place. Any expansion of this
limited jurisdiction will be up to the legislature. However, aggrieved
employees still have remedies in civil courts for wrongful dismissal, as well
as the right to apply to the Human Rights Tribunal of Ontario (if the
harassment is on the basis of a ground prohibited by the Human Rights Code).
Employers and employees may have differing views on what
constitutes workplace harassment. The Amodeo decision provides some
guidance and comfort to employers. Employers, including charities and
not-for-profits, need to be aware of and educate managers and employees as to
the differences between workplace harassment and legitimate managerial
conduct. However, there are situations where the line between reasonable
managerial action and workplace harassment is difficult to draw, especially
when employee discipline issues are involved. Therefore, developing and
following proper workplace harassment policies will reduce the risk of
unresolved harassment complaints being litigated in courts or tribunals.