RE:  Is it Harassment?  Factors to consider

Dear Brothers and Sisters:

This document aims at helping union representatives take a proactive role in eliminating workplace harassment. While this is an employer’s responsibility, we know that many union representatives are consulted by members when a difficult situation arises in the workplace.

The line between harassment and human tensions is often so fine that it is difficult to be accurate in our assessment.  In discussing with members, it is important to identify whether the situation arises from harassment risk factors.  Following are the main workplace elements having the potential of triggering a situation of harassment.

Risk Factors:

1. Changes in management practices, often resulting from:
   
   1. New supervisor (management style)
   2. New policies (such as changed work schedules)
   3. New rules (such as granting of leave)
   4. New technology (such as resources, equipment)
   5. Reorganization of duties (such as new job description)
       
2. Unmanaged conflicts or poorly handled
   
   1. Differences of opinion
   2. Questioning decisions, changes, etc.
   3. Lack of understanding or of proper definition of everybody’s roles and responsibilities
   4. Different performance expectations
       
3. Human aspects
   
   1. Personality
   2. Value and beliefs
   3. Lack of respect, rudeness
   4. Lack of communication

When you can determine that the situation arises from risk factors, it should not be ignored, because any unaddressed situation can potentially become harassment. As part of the intervention you deem most appropriate, the recommendation is to restore the lines of communication between the parties or use employer/union consultation.  The purpose is to restore a positive work environment.

Harassment:

Following is the harassment definition according to the Employer’s Policy:

“Harassment is a form of misconduct which includes any improper behaviour by an employee that is directed at and is offensive to any employee and which that person knew or ought reasonably to have known would be unwelcome and cause offence or harm.  It comprises any objectionable conduct, comment or display that demeans, belittles or causes personal humiliation or embarrassment, and any act of intimidation or threat, any of which detrimentally affects individual well-being or the work environment.  It includes sexual harassment and harassment within the meaning of the Canadian Human Rights Act (i.e. harassment based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted).”

Here are a few examples:

1. Reducing the employee’s duties and having them performed by others with the aim of reducing his/her contribution
2. Excessively increasing control over the employee’s work
3. Noticeably reducing the employee’s decision-making flexibility
4. Isolating the employee
5. Not allowing communication with others
6. Discrediting

In some cases, an incident might not be recognized by the employer as harassment.  In fact, an isolated incident that was apologized for would be considered a deviation, lack of judgement or sensitivity towards a situation, etc.  We have noticed that in some harassment complaints that have been investigated, the employer finds that the conduct was unacceptable but does not constitute harassment. It remains that it is important not to downplay situations that could erode the work environment.  Every case is unique and we must handle them as such.

In other cases, it is important to assess the incidents as a whole, because some time could elapse before a person realizes that the repeated incidents do in fact constitute harassment.

To this extent, Me Gilles Robichaud mentions in: Létourneau c. Aéroport de Montréal (Aéroport international de Montréal)
Montréal, 2004-05-07, [2004] C.L.P. 63 (C.L.P.), Me Gilles Robichaud

“[…] when a series of incidents that, taken in isolation, seem harmless and become significant when overlaid.  The set of incidents must exhibit a particular nature that goes beyond the usual, normal or predictable framework that someone can rightly expect from the workplace .....”

Despite what was said previously, any form of harassment connected with a ground of discrimination cannot be excused and the employer has a legal obligation to take action.  The excuse or intention in these cases are not mitigating factors.

Right to manage

Moreover, in your role as union representative, you must explain to a member claiming to be harassed that the employer has a legitimate right to manage employees’ work. Here are a few examples of that right:

1. Asking an employee to adhere to the working hours, when there is an unjustified work attendance problem
2. Performance evaluation
3. Work organization
4. Workload redistribution
5. Disciplinary action when there has been a violation or wrongdoing

The right to manage must be exercised fairly and equitably with the aim of improving a situation, an employee’s performance and work efficiency.  However, a superior’s use of authority to intimidate, discredit, etc. becomes abuse of power and falls under the definition of harassment.

In conclusion, we trust that you will find this document useful. If you have any questions regarding this document, do not hesitate to contact Marcel Bertrand, Chairperson of the Committee or Lyson Paquette, Technical Advisor.

In Solidarity,

Marcel Bertrand 
Chairperson
UTE Harassment Committee