By: Timothy Schjerning

Everyone has the right to work in an environment free from harassment and discrimination. However, at times it can be very challenging when determining what exactly constitutes workplace harassment.

Some forms of behaviour, like unwelcome sexual behavior or physical violence, will never be tolerated in a workplace. Yet other forms of conduct, such as the criticism of workplace performance, can be more subjective and dependent upon the facts of the case.

For instance, employers are allowed to provide reasonable performance reviews and workplace direction for their workers. However, unreasonable criticism may constitute workplace harassment. Thus, there is an important distinction between valid performance reviews and workplace harassment.

As a general rule, courts will assess performance reviews and workplace harassment with an eye to reasonableness. Conduct reasonably connected to the safe and orderly management of the workplace will be tolerated. However, conduct unconnected to job performance or conduct that is uncivil or disrespectful may constitute workplace harassment.

Occupational Health and Safety Act

In Ontario, the Occupational Health and Safety Act (“OHSA”)[1] provides important definitions of workplace harassment and violence. Workplace harassment is defined as:

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b)  workplace sexual harassment;

The OHSA also provides a specific definition for sexual harassment:

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b)  making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.[2]

These OHSA definitions are intentionally quite broad: the intent is to prevent any form of workplace harassment from occurring.

Yet, the OHSA does indicate what to look for when assessing harmful conduct. By defining workplace harassment as “vexatious comment or conduct … known or ought reasonably to be known to be unwelcome,” the OHSA definition focuses on what is reasonable in the circumstances. This is an objective question: someone may be engaging in workplace harassment even if they did not intend to be. The test is whether the conduct in question is reasonably connected to the workplace, or if it is instead harmful behaviour that should be known to be unwelcome.

Applying the OHSA to performance reviews, the law indicates that any performance-related comments must be wholly connected to the employee’s job responsibilities. Comments that are about matters irrelevant to the employee’s job, or unsubstantiated criticism of performance, will not be tolerated. Importantly, while an employee may not welcome performance criticism, the OHSA will not be violated if an employer focuses on reasonable concerns with the employee’s work performance.

Common Law

The common law also protects workers from harassment, through creating the implied term in every employment agreement that all workers must be treated with “civility, decency, respect and dignity.”[3] Similar to the OHSA, the common law requires all employers to keep workplaces free of harassment in any form.

If workplace harassment does occur, then workers may be able to claim constructive dismissal from their employment. Here, the test is whether the employer’s conduct violated the term of “civility, decency, respect and dignity” in the employment agreement.

Workplace harassment at common law can occur in many ways. For instance, courts have found repeated, unwarranted criticisms of a worker’s performance over a drawn-out period of time to constitute constructive dismissal.[4] A single incident of harassment may also constitute constructive dismissal, depending on the severity of the incident. For example, this may include an aggressive and demeaning single outburst against a long-time employee’s performance.[5]

What does this mean for me?

The law is clear that while employers may provide reasonable criticism of workplace performance, such criticism must be connected to the job. However, the law and the courts are firm that employers must not engage in hostile behavior towards workers when conducting performance reviews, and must be civil and respectful at all times.

In practice, this means that when conducting performance reviews, employers should never:

  • Use profane or vulgar language;
  • Make condescending or demeaning remarks;
  • Make unsubstantiated claims about a worker’s performance;
  • Criticize areas unconnected with the worker’s job responsibilities;
  • Make threats of violence or behave aggressively;
  • Make unwanted sexual remarks or advances; or
  • Otherwise make comments known or ought to be known to be offensive or discriminatory.

If you believe that your employer has engaged in the above conduct, consider raising your concerns through your employer’s workplace harassment policy. In Ontario, every employer is required to create a workplace harassment policy and complaint procedure, and must investigate any apparent harassment concerns.[6] Your employer is also prohibited from punishing you for raising these concerns.[7]

If your employer’s conduct has made your continued employment intolerable, consider contacting legal counsel. Workplace harassment may constitute constructive dismissal, which would allow you to consider your employment to be terminated by your employer. Always be sure to consult with your legal counsel before making constructive dismissal claims.

[1] Occupational Health and Safety Act, RSO 1990, c 0 1 (“OHSA”).

[2] Ibid, at s 1.

[3] See Piresferreira v Ayotte, [2008] OJ No 5187, 173 ACWS (3d) 954 (ON SC).

[4] See Shah v Xerox Canada Ltd, [2000] OJ No 849, 131 OAC 44 (ON CA); Boucher v Wal-Mart Canada Corp, 2014 ONCA 419.

[5] See Sweeting v Mok, 2015 ONSC 4154.

[6] OHSA, supra note 1, at ss 32.0.1(1); 32.0.6(1); 32.0.7(1)(a).

[7] Ibid, at s 50(1).