In International Association of Machinists and Aerospace Workers, Local Lodge 1922 v Canadian Office and Professional Employees Union, an Ontario labour arbitrator considered whether repeated workplace gossip by an Executive Director amounted to bullying and psychological harassment under the collective agreement and workplace harassment under the Occupational Health and Safety Act (“OHSA”).

The arbitrator concluded that the employer violated the collective agreement’s anti-harassment provisions and the OHSA’s workplace harassment provisions. The employer was ordered to pay $5,000 in general damages to one grievor and $12,000 to the other.

The decision highlights the risks associated with pervasive workplace gossip and other abusive workplace commentary, particularly where the comments are made by a senior leader with authority over employees. The decision also demonstrates that employees may experience workplace harassment not only when they are the direct subject of the comments, but also when they are repeatedly exposed to abusive commentary about their colleagues.

Background

The grievance was filed on behalf of two Labour Relations Specialists employed by the Canadian Office and Professional Employees Union (“COPE”).

Both employees alleged that the employer’s former Executive Director had created an intimidating, destabilizing, and psychologically unsafe workplace. Their allegations included repeated gossip about COPE staff, and board members.

The complaints were externally investigated. The investigator conducted 38 interviews and reviewed workplace documents, emails, and other evidence. The investigator found that several allegations were substantiated.

In particular, the investigator found that the Executive Director had engaged in pervasive workplace gossip about employees and board members, including comments about their competence, mental health, personal lives, and professional abilities. The investigator concluded that this gossip contributed to a poisoned work environment.

One grievor also established that the Executive Director discussed the possible extension of her probationary period in a common workplace area in the presence of others. The investigator further found that the Executive Director made threatening comments during a one-on-one meeting, including words to the effect that if people tried to bring her down, she would bring them down. The arbitrator found that the statement could only have been intended to intimidate.

The parties agreed that the arbitrator would accept the investigator’s factual findings and determine whether those findings established violations of the collective agreement and/or OHSA. Importantly, the investigator’s conclusions were not themselves binding on the arbitrator; the arbitrator independently applied the applicable legal standards to the established facts.

The Decision

Article 22 of the Collective Agreement Breached

The collective agreement required the employer to ensure employees were free from bullying and psychological harassment. The arbitrator noted that bullying/psychological harassment under the collective agreement requires conduct that is vexatious, known or reasonably known to be unwelcome, and that either adversely affects an employee’s dignity or psychological or physical integrity, involves repeated conduct that could reasonably be viewed as intimidating, offensive, degrading, or humiliating or results in a harmful work environment.

Using this framework, the arbitrator found that the Executive Director’s repeated comments were vexatious, unwelcome, and harmful. The comments included allegations that employees were “incompetent,” “lazy,” “crazy,” “mentally unstable,” and “terrible” at their jobs, as well as comments concerning employees’ mental health and substance use. Given her senior position, the arbitrator determined that she ought reasonably to have known that this type of commentary was inappropriate and unwelcome.

The arbitrator also emphasized that allegations should be assessed collectively rather than in isolation. For one grievor in particular, the findings were viewed as “part and parcel” of the same power dynamic in the workplace. The arbitrator found that the conduct reflected a broader pattern of abuse of power by the most senior person in the workplace, causing employees to feel unsafe, anxious, and emotionally drained.

Workplace Harassment Under OHSA

The arbitrator found that the Executive Director’s conduct objectively serious and constituted workplace harassment under OHSA.

In doing so, he emphasized that workplace harassment is assessed objectively and distinguished workplace harassment from personality conflicts, interpersonal tensions, poor communication, insensitive comments, unpopular management styles, or other forms of ordinary workplace conflict.

However, where managerial conduct becomes abusive, demeaning, hostile, degrading, humiliating, or intimidating, it may cross the line into workplace harassment. Here, the Executive Director’s repeated gossip, disclosure of sensitive personal information, public discussion of a probationary employee’s employment status, and threatening comments were found to constitute workplace harassment. The power imbalance between the Executive Director and the employees was a significant factor in that conclusion. The arbitrator also recognized that the grievors were affected by being exposed to abusive comments about other employees, even where they were not always the direct subjects of those comments.

Investigating the Problem Does Not Erase Liability for Senior Leadership Misconduct

The employer argued that it had taken the complaints seriously. It retained an external investigator, removed the Executive Director from the workplace, subsequently terminated her employment, and took steps to address the investigation findings.

The arbitrator acknowledged those steps. However, the Executive Director was the highest-ranking member of management and part of the employer’s “directing mind”. As a result, the employer remained liable for her conduct. The employer’s response to the complaints did not eliminate liability for the harm caused to the grievors. The arbitrator recognized that an employer’s prompt and reasonable response can, in some circumstances, limit liability, but concluded that this principle did not protect the employer here because the misconduct was committed by its directing mind.

Damages Award

The union sought general damages for pain and suffering or emotional injury.

The first grievor was awarded $5,000 in general damages. The second grievor was awarded $12,000, reflecting factors including her additional vulnerability as a newer employee, the discussion of her probation in a common area, and the threatening comments made to her. 

Key Takeaways for Employers

• Workplace Gossip Can Amount to Harassment: Employers should not dismiss gossip as harmless workplace chatter. Repeated negative comments, rumours, and disclosure of sensitive personal information can create a poisoned or harmful work environment, particularly where they come from management. The case is particularly instructive because the grievors were also affected by repeatedly hearing abusive comments about their colleagues. 
• The Line Between Poor Management and Workplace Harassment: Arbitrators recognize that managers are not held to a standard of perfection. However, conduct that is abusive, demeaning, hostile, degrading, humiliating, or intimidating can cross the line into workplace harassment.
• A Reactive Response May Not Eliminate Liability: The employer’s external investigation and remedial steps were relevant, but they did not shield the employer from liability where the harasser was the Executive Director. Employers should ensure senior leaders are trained on respectful workplace obligations and understand that gossip, threats, and public discussions of sensitive employment matters can create legal exposure.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.