[author: Adrian Miedema]
A supervisor’s conduct that falls within his or her normal work function is not normally “workplace harassment” under the Occupational Health and Safety Act, the Ontario Labour Relations Board has said in a welcome decision for employers, even where it has “unpleasant consequences” for the employee.
A social worker at a nursing home alleged that the Director of Care harassed her by issuing a written warning and by telling the social worker many times that she was to document and keep on file every conversation that she had with residents’ family members. She said that the supervisor also expressed concern with the social worker’s difficulties “keeping up with the Resident Assessment Protocols”. The social worker wrote an e-mail to various members of senior management complaining about the Director of Care’s treatment of her. Shortly afterwards, the nursing home terminated her employment. The social worker then filed a complaint under the OHSA alleging she suffered a reprisal for raising harassment issues.
The OLRB stated:
“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.” [underlining added]
. . .
“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 OLRB decided that the Director of Care’s reminders to document discussions with family members, and comments about the employee’s ability to keep up, were not a “vexatious course of conduct or comment”. Sometimes the exercise of management functions, which the supervisor was engaging in, has unpleasant consequences for employees, but that did not necessarily translate into workplace harassment.
Amodeo v Craiglee Nursing Home Limited, 2012 CanLII 53919 (ON LRB)