The Duty to Investigate vs. Management’s Right to Manage

Written by John Curtis on . Posted in Uncategorized

A Collision Course or Two Ships Passing in the Night?

Many investigations involve claims of harassment which are linked to management decisions that staff/complainants do not like and may even cause significant aggravation…but those decisions are within the power of management to make. Can such decisions form the basis of a claim of harassment?

Such claims seem to be a growing trend in the investigations for which I have been retained recdntly.  Employees can wield a great deal of power with a complaint against management staff while an investigation is ongoing. This seems to be a recurring theme for the abuse of this power, but every case must be considered on its own merits.

Sometimes, employees have difficulty communicating the issues and real complaints about harassment get tangled up with other things that they find upsetting but are not harassment.

Example 1:

A trucking company adopts a new electronic tracking system for its trucks and the materials being shipped. This new system requires all drivers to learn how to enter various information on an iPad rather than the paper-based tracking system used for the last 50 years.  The new system has all sorts of efficiency and improved customer services benefits and this is why the employer has decided to introduce the technology.

Some of the drivers find this highly annoying – even “vexatious” and claim harassment. Leaving aside the human rights based discriminatory harassment of several older drivers, does this meet the definition of harassment? Maybe or maybe not, but likely not if things are as the employer asserts and the new technology really is simply to improve efficiency and customer service and not simply a way to get rid of “dead wood”. Of course the employer would also have to offer to train people how to use the new technology and not simply leave those older drivers to flounder.

Perhaps there is unfair treatment or humiliation of certain resistant employees which could qualify as harassment. Assuming none of that is present, improved efficiency and customer service are reasonable purposes and therefore they are legitimate management objectives despite the annoyance of some staff. 

Example 2:

Staff feel overworked and underpaid compared to others working in similar jobs in their industry. A group of staff lobby to get a raise. No raise is forthcoming, they feel unappreciated, declare that management’s operational decisions are upsetting and even “vexatious” and “unwelcome”. (the magic words used in the definition of harassment in the Occupational Health and Safety Act.

Several staff claim harassment based on the failure to get a raise amongst numerous other complaints about workplace conditions and apparent management indifference to their concerns. Is the failure to get a pay raise harassment? Surely the more reasonable option than claiming harassment is to look for another job. The employer did not force anyone to agree to an underpaid job.

Assuming these two examples are as they appear, the allegations of harassment are unlikely to succeed because they involve the legitimate right of management to manage the workplace despite seeming to meet the legislative definition of harassment – “a course of vexatious comment or conduct” that the perpetrator “knew or ought to have known would be unwelcome.“

When you don’t get a raise, that is not welcome news. Some employees might even find it upsetting and indicative of a profound lack of appreciation, but this is not harassment. When an employer requires employees to learn new things it can challenge expectations and even make some people feel foolish as they struggle to learn. Life is filled with disappointments and often there is very little one can do to rectify things. Most workplace disappointments are dealt with by trying harder next time, finding a new job, avoiding certain types of thankless tasks when possible, etc.

These observations may seem uninteresting because they sound rather obvious, but these scenarios sometimes lead to disruptive and expensive workplace investigations. It all begs the question: Can employers simply ignore this type of allegations of harassment without conducting an investigation?

How should employers handle complaints about legitimate management decisions that are unpopular and are framed as harassment complaints to trigger an investigation and upset the balance of power?

The curious thing is that one need not use the word “harassment” to oblige an employer to investigate. It is not meant to be a “magic word”, and yet when the word is used and even misused, like in the examples above, it appears that employers do feel compelled to commence an investigation. If the complaints relate to management decisions they are often choosing to hire outside independent investigators. I don’t disagree with this cautious approach but as we know investigations are highly disruptive to the workplace and expensive. Can anything be done?

In a recent case an employer decided not to investigate based on an interpretation of the statutory requirement that investigations be “appropriate in the circumstances”. (St. Joseph’s Healthcare Hamilton v Haarika Stoimenov (AKA Sivanarayan) and The Ontario Nurses Association, 2019 CanLII 45230 (ON LRB))

The Hospital received an order to investigate a complaint of workplace harassment, which it did. The hospital issued a report and provided it to the complainant and her union. The complainant raised a new complaint with the Ministry of Labour claiming the investigation was inadequate and thus failed the requirement to be “appropriate in the circumstances” as required by OSHA.  – s. 37.0.7 (1)(a)

The hospital acknowledged that it did not investigate every allegation because they were not all related to harassment. The Ministry of Labour ordered an investigation of all the allegations that were not investigated. The hospital appealed the Ministry’s Order to the Ontario Labour Relations Board which found that the hospital had an adequate basis upon which to justify limiting the allegations it investigated. The Board accepted the hospital’s argument that not all the complaints were about harassment.

This case suggests that there is some room for an employer to limit the matters it investigates. However, it may often be easier to just investigate those matters which do not appear on their face to be about harassment, especially when they are mixed in with possibly legitimate harassment allegations. As noted above, many complaints that I investigate simply turn out to be complaints about management decisions that an employee did not like. These are easy for an investigator to dismiss as invalid due to management’s right to manage under s. 1.04 of OHSA. S. 1.04 says:

A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

If the complaint clearly fits into this category, investigating it and letting the investigator dismiss it because it is not a complaint of harassment avoids the potential of being taken to task by the Ministry of Labour for not investigating a particular complaint. This approach will not likely add significant time and cost to the investigation. These type of complaints are often amongst the easiest complaints for investigators to handle.

Another thing to consider is to draw attention to the possibility of these “faux” complaints in the employer’s harassment policy. Many policies provide a series of examples of harassment.  Examples of things that could upset employees but are not harassment could also be provided as examples in the policy. This can be customized to the workplace to include examples likely to arise in that particular workplace.

Most harassment policies contain the ability to sanction a complainant for bringing a bad faith complaint but bad faith implies the complainant knew the complaint was not legitimate and brought it forward anyway. Employees can have legitimate confusion in this regard so this concept of the bad faith complaint may not work to deter complaints about management decisions masquerading as harassment complaints, but in the right circumstances it might work, especially if the distinction between harassment and other possible reasons for employee upset and annoyance are clearly distinguished in the policy.

As employers and employees become more familiar with the harassment investigation regime, hopefully these faux complaints will become less common and the intrusive and expensive investigation process will become more focused on the intended targets – actual workplace harassment.

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