Sunday, 7 August 2016

Is Protection from Workplace Harassment Only for Employees and Not Management?

In my last post, Employers Responsible for Protecting Employees from Harassment on Twitter, I looked at a recent labour award, Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (ON Arb), in which a labour adjudicator held that the employer had failed to protect its employees from online harassment. I admit to having difficulty with that decision.

One of my greatest concerns with the TTC case is its seeming disparity with the decision reached by the Court of Appeal for Ontario in Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495.

Although there are some differences between the two cases, which will be considered below, at the heart of it both cases concerned objections to online vitriol directed toward workers just trying to do their jobs.

In the TTC case the adjudicator held that:

It is clear from the totality of the evidence that the TTC has failed to take all reasonable and practical measures to protect bargaining unit employees from that type of harassment by members of the community, as required by the [Human Rights Code], the [Collective] Agreement, and the Workplace Harassment Policy.

Yet, in a case concerning similar online vitriol, the Court of Appeal reasoned as follows:

[67] …Section 2(b) of the Charter protects a broad range of expressive activity, including “distasteful” expression. By the same token, it does not protect violent expression, and some expression, such as hate speech, does not enjoy equal treatment in determining an appropriate balancing of competing values under a s. 1 analysis. The [Human Rights] Tribunal understood these legal principles, stating that “the nature of the expression is a factor in the balancing of rights.” But, the blog postings in this case were not hate speech. They contained rude, distasteful, and sexist remarks which even [the respondent] acknowledged, upon reflection, appeared to him to have been “written by an ‘asshole’. [Citations omitted.]

So what gives?

Facts

I will not repeat the facts in the TTC case. For those looking for more context to that case, see my earlier post: Employers Responsible for Protecting Employees from Harassment on Twitter. Suffice to say, the Toronto Transit Commission, which operates the city’s public transportation system, receives a fair amount of online harassment when it does not provide service up to the demanding standards of the public. When the union representing the employees who work for the TTC grieved that the employer was not doing enough to prevent such online harassment a labour adjudicator agreed.

In the Taylor-Baptiste case the facts were slightly different. In that case the applicant, later appellant, Ms. Mariann Taylor-Baptiste, and the respondent, Mr. Jeff Dvorak, both worked at the Toronto Jail. In late 2008 and early 2009, when the events at issue took place, Ms. Taylor-Baptiste was Mr. Dvorak’s manager. Mr. Dvorak was president of the jail’s local branch of the respondent union, the Ontario Public Service Employees Union (“OPSEU”).

In early 2009, during a period of labour unrest and intense collective bargaining, Mr. Dvorak operated a blog about union matters on which he authored a blog post, and permitted the posting of a comment written by someone else, both accusing Ms. Taylor-Baptiste of nepotism and incompetence. Mr. Dvorak’s post read as follows:

Yesterday our annex staff had a valid concern regarding the conditions they HAVE TO walk through to get to there [sic] work stations. Yet there [sic] deputy waited hours to call someone else to ask what she should do. First of all if you don’t know the answers to something this simple Ms. Baptiste maybe you should call your boyfriend over at his office after all he is the only reason you got the job. Clearly all you have shown is an inability to handle even the easiest of situations or staff relations. Perhaps our senior administration should reconsider there [sic] hiring practices for deputy’s [sic] and change the qualifications from having intimate knowledge off [sic] another deputy to something like maybe some experience doing the job, like Mr. Puntillo. Oh yeah I forgot doing the job for three years doesn’t even get you an interview. Anyways congratulations to the annex staff well done and keep showing this employer they can’t forget about you. I am out of town in Ottawa actually to tell some mp’s and senators just what kind of conditions we are working in but will be back tomorrow until then keep up the good fight!!!!!!!!!

Ms. Taylor-Baptiste alleged that the two posts belittled her on the basis of sex and marital status because they relied on stereotypical views about women obtaining positions of power through sexual relations. She alleged that the posts suggested she only got her managerial job because of her husband and exposed her personal relationships with others working at the Ministry. She also contended that the posts painted her as an incompetent woman, in contrast to competent men such as her current partner, her ex-husband, and Mr. Puntillo.

On several occasions management raised concerns with Mr. Dvorak about the blog and asked him to remove the blog’s references to managers. Mr. Dvorak initially resisted those requests but, in mid-February 2009, he stopped making new postings. Several days later he made the blog inaccessible without a password, which he did not share with anyone else.

Management did not discipline Mr. Dvorak for his blog. After the collective agreement was concluded, the union and employer agreed that no discipline would be meted out to employees who had made blog postings during negotiations and who had not already been disciplined.

Ms. Taylor-Baptiste filed a Workplace Discrimination and Harassment Prevention Policy complaint against Mr. Dvorak, but it was not pursued because of the agreement reached between the Ministry and the union.

The refusal to pursue the workplace harassment complaint led Ms. Taylor-Baptiste to file her application to the Human Rights Tribunal of Ontario against the respondents alleging that the blog posts violated ss. 5(1) and 5(2) of the Ontario Human Rights Code. Section 5(1) of the Code protects “equal treatment with respect to employment without discrimination” on enumerated grounds including sex and marital status. Section 5(2) of the Code provides employees with a right to freedom from harassment in the workplace by the employer or by another employee because of marital status, among other grounds.

Decision of the HRTO

As more fully detailed by this blog in the post The Right to be Free from Harassment... Online , in 2012 the HRTO dismissed Ms. Taylor-Baptiste’s application, finding no discrimination in employment nor harassment.

In reaching such a decision, then-Associate Chair David A. Wright held that:

[33] What is of concern about the comments is the use of sexist language to convey the point about nepotism. Mr. Dvorak drew upon frequently used sexist stereotypes about women in positions of power “sleeping their way to the top” through suggesting that her qualification for the job was “intimate knowledge of another deputy”. This was not merely a comment about nepotism, but about the sexual relationship between her and her spouse, suggesting that she had obtained her position through sex. Similarly, the comment, “if you don’t know the answers to something this simple Ms. Baptiste maybe you should call your boyfriend over at his office” draws upon the stereotype that women get ahead through their relationships with more competent “boyfriends”.

[37] Whether or not these underlying concerns had any merit and despite the sexist stereotypes used to express them, they fundamentally relate to the union’s and Mr. Dvorak’s role as representative of the members of the bargaining unit in their relationship with the employer. They were directed at the union membership and related to the union-management relationship. They are, in my view, analogous to comments on labour-management issues made at a union meeting or a union newsletter. Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union’s right to operate independently of the employer.

[40] Considering all these circumstances, I conclude that Mr. Dvorak did not discriminate against the applicant with respect to employment. His postings were made on issues of union-management concern, and while they relied upon sexist language, they were not gratuitous attacks unrelated to union business.

Decision of the ONCA

Ms. Taylor- Baptiste sought judicial review of the HRTO’s decision by the Ontario Divisional Court. That application was dismissed for reasons reported at Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169.

On appeal to the Court of Appeal for Ontario Ms. Taylor-Baptiste did not challenge the Tribunal’s finding that the blog posts were not made “in the workplace” within the meaning of s. 5(2) of the Code.

However, with respect to the aspect of discrimination, Ms. Taylor-Baptiste first advanced the position that the Tribunal erred by considering Charter values in its analysis of Human Rights law. The Court of Appeal disagreed.

Ms. Taylor-Baptiste then argued that if the Tribunal was entitled to take into account Charter values in deciding whether the respondents’ conduct violated s. 5(1) of the Code, the Tribunal failed to strike a reasonable balance between Charter values and the statutory objectives of the Code. On this point the Court of Appeal also disagreed, for the reasons set out at the start of this post:

  • Section 2(b) of the Charter protects a broad range of expressive activity, including “distasteful” expression.
  • Some expression, such as hate speech, does not enjoy equal treatment in determining an appropriate balancing of competing values under a s. 1 analysis.
  • The blog postings in this case contained rude, distasteful, and sexist remarks which even Mr. Dvorak acknowledged, upon reflection, appeared to him to have been “written by an ‘asshole’;
  • But, the blog postings in this case were not hate speech.

In the end, the following appeared to be the factors that were fatal to Ms. Taylor-Baptiste’s application:

  • The comments were made by Mr. Dvorak in his role as a local union president on a union blog, rather than in his role as a fellow employee;
  • The comments dealt with union-management relations;
  • Ms. Taylor-Baptiste was a manager who had the power in the workplace that came with that role;
  • The comments were directed at the union membership; and
  • The posts expressed to the union members opinions on how Ms. Taylor-Baptiste had handled the work refusal by union members.

The Court of Appeal dismissed Ms. Ms. Taylor-Baptiste’s appeal and the Supreme Court of Canada refused to grant her leave to appeal to that court: Mariann Taylor-Baptiste, et al. v. Ontario Public Service Employees Union, et al., 2016 CanLII 34004 (SCC).

Commentary

As I mentioned, it is somewhat difficult to see a brightline difference between the two cases. In both cases an employee was made the subject of online vitriol because of his or her official position. In the TTC case, the complaint was that operators or other staff members were being targeted on Twitter for failing to perform (either adequately or at all) their official duties. Ditto Ms. Taylor-Baptiste.

What was different between the two cases was that the TTC case was a labour grievance, whereas Ms. Taylor-Baptiste made application to the Human Rights Tribunal of Ontario.

At least some of what guided the TTC award was the requirement in Ontario’s Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of the worker.” (Para. 25(2)(h).) The HRTO would not have had jurisdiction to consider such obligations and the respondents in that case were not Ms. Taylor-Baptiste's employer in any event.

That said, the adjudicator made express reference to the provisions of the Human Rights Code, which should have engaged the Taylor-Baptiste decisions. None of the decisions was referenced in the award.

All of that said, in my opinion, the biggest difference in this case was that Ms. Taylor-Baptiste was management: “Ms. Taylor-Baptiste was a manager who had the power in the workplace that came with that role.” Her application was filed against a subordinate and his union, not the other way around. Given the same, the implicit message was that Ms. Taylor-Baptiste should have accepted the situation as a part of her position, whereas the frontline workers of the TTC have not agreed to accept such abuse. Is the same a double standard? Perhaps, but discrimination on the basis of success is not prohibited by Ontario law.

Takeaways for Employees with Labour Pains

The takeaway for employees is that one’s status within an organization may matter. Climbing the corporate ladder may come with the expectation that one will have to suffer greater harassment before the law will respond.

If you are a worker in Ontario and are experiencing what you believe to be workplace harassment, speak with an experienced employment lawyer. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

It is my observation that the pendulum is swinging back in favour of employees when it comes to workplace harassment claims. For years I have been cynical of the law’s efficacy in this area (note that no damages were awarded in the TTC case), but, that said, I do see a gradual shifting of the sands, see e.g. Doubling Down Damages – The Ontario Court of Appeal Sends Strong Message to Discriminatory Employers.

Employers absolutely need to be aware of and mindful of their obligations under Ontario’s myriad employment statutes. If you are only reading the Employment Standards Act, you are not considering the whole picture.

If you are an employer and you need some assistance navigating Ontario’s employment law regime, contact the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP; we would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

1 comment:

  1. Thank you, that was a very good analysis and raises some good discussion points about future application of the principals involved. There have been a couple of other recent HTRO decisions that discuss the duty to protect human rights where it was found that the organization had failed its duties. Applying these principals going forward is most liklely going to continue to raise similar disparities in how different individuals are treated.

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