Complaint challenging timidity of employer response to attack blog dismissed

On January 22nd, the Ontario Grievance Settlement Board dismissed a group complaint alleging that an employer failed to respond appropriately to a union blog that attacked members of management.

Vice-Chair O’Neil heard the complaint. The following is her description of the content of the blog:

The more objectionable posts in evidence allege managerial corruption or negligence, such as never seeing inmates or having “screwed up” the previous attendance management program. Others insult managers in general, using terms such as useless, pathetic, vindictive, morons and misfits. Cartoons and comments referred to attendance management procedures and imposition of discipline as “kangaroo courts”. Suspensions for excessive use of force were referred to as attacks on people just trying to do their best, and it was suggested that the safety of the staff was never a concern. Mocking allusions to acquiescing to being strip searched were used to describe those in the union accused of lacking courage to take action against policies the blogger did not like. Staff who took acting assignments and worked overtime were criticized as siding with management, and managers who work significant amounts of overtime accused of having social problems. Pay for performance was characterized as bonuses for screwing up, and it was suggested that the superintendent and deputies would get a higher percentage of pay for performance the more short-staffed the institution was.

Some, but not all of the blog’s authors were identifiable. Nonetheless, the employer chose to take a measured approach to dealing with the blog and did not discipline any perpetrators. Instead, it authored a joint memo with the local union president that encouraged respectful conduct and issued its own warning letter to those responsible for the blog. The blog then became password-protected, which members of the targeted management group did not feel was an adequate resolution. They complained.

In dismissing the complaint, Vice-Chair O’Neil said the following about an employer’s duty to respond to workplace harassment:

In respect of providing a harassment-flee workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act.

Vice-Chair O’Neil held that the employer did not fail to meet any specific requirement of the applicable policy and otherwise acted within its discretion.

Lee v Ontario (Ministry of CommunitySafety and Correctional Services), [2013] O.P.S.G.B.A. No. 1 (G.S.B.).

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