Taking the Bully by the Horns: When is it bullying? When is it management?

There is a saying that people don’t leave jobs, they leave managers. Whether it’s because of perceived bullying by supervisors or a lack of support in dealing with harassment from colleagues, staff turnover is often an indication of a toxic workplace. However, employers and unions face tough questions in determining when behaviour crosses the line into bullying and harassment (particularly in the context of a supervisor managing employees) and how to appropriately discipline for such conduct. In this session, legal experts will discuss the ins and outs of identifying and responding to workplace bullying, addressing issues such as:

• Identifying bullying and harassment: What kinds of behaviours meet the legal definitions of bullying and harassment? Can a single episode constitute harassment, or is a series of discrete incidents required? Does the behaviour have to be words or actions that are overtly aggressive or disrespectful, or can subtle, insidious or passive-aggressive conduct also qualify as bullying behaviour? What is the difference between bullying behaviour and rudeness or a difficult personality? Will a historically “tough” or disrespectful workplace culture excuse bullying behaviour, or do statutory protections against harassment and violence negate such a defence?
• Management vs. bullying: Where do arbitrators draw the line between management and bullying? Is the assessment based on an objective standard, or does an adjudicator examine the complainant’s subjective impressions? How can you distinguish between bullying, an aggressive management style, and simple insensitivity? Does “micro-managing” constitute bullying behaviour? Can a supervisor’s investigation into a genuine workplace issue amount to bullying or harassment?
• Appropriate disciplinary response: Are there common factors that adjudicators consider when assessing the reasonableness of discipline for bullying? What type of conduct justifies a summary dismissal? Where discharge is overturned at arbitration, what factors are determinative in arbitrators’ decisions to order compensation in lieu of reinstatement?
• Considering disability-related misconduct: What steps should an employer take if an employee’s bullying behaviour is known or suspected to be linked to a mental health disability? Should discipline be imposed? Is accommodation necessary?
• The union’s role: What role should the union play in the process of reporting and responding to harassment/bullying complaints? How can unions deal with member-on-member bullying complaints without violating their duty of fair representation?