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Drawing the Line: When Performance Management Becomes Harassment

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Basic Workplace Investigation Techniques
9 Jul - 11 Jul at Ontario Heritage Trust - Birkbeck Room
If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you aren’t alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.
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Most of us approach our work with the intention of doing our best.  We strive to ensure that the quality of our work meets the standards that we have set for ourselves as well as those established by our employer and the clients or customers we serve.  Whether or not this objective is realized depends on a combination of factors that relate to our individual strengths and the particular conditions of our work environment.

Employers, generally speaking, are equally keen to see employees reach their full potential.  To that end, employers use various tools ranging in formality from ad hoc feedback provided on an ongoing basis, to structured performance improvement plans with specific and measurable deliverables and timelines.  Employers have the right to manage the performance of their employees.  In fact, they are required to do so.[1]

Case law makes it clear that employers ought to be afforded some latitude to manage their operations and workforce.   The challenge lies in distinguishing between (a) legitimate efforts to manage employee performance issues, and (b) conduct that crosses the line and can be objectively better characterized as harassment.  Repeated criticism – even if prompted by a genuine concern about the employee performing below the expected standard – may be harassment when it is communicated in a manner that is demeaning, insulting, humiliating, or mocking.  Similarly, placing an employee on a performance improvement plan may constitute harassment if the employee is required to meet unreasonable deadlines and is provided with little to no support to meet the deliverables set out in the plan.  Other examples of conduct that has been found to be incompatible with a continuing employment relationship include:

  • Regular use of profanity or racial or other slurs;
  • Sometimes coupled with menacing physical gestures;
  • Expressed in a raised voice; or
  • Belittling or demeaning (as opposed to just criticizing) the employee or his or her work in front of other employees.

Ultimately, supervisors and managers have the right to give directions, evaluate performance and impose discipline on subordinates.  The qualification to this broad and well-established principle? The execution of management duties should be related to a legitimate workplace purpose and must not be done in a way that is abusive, demeaning, or hostile.

Challenges and Tips for Investigators

Investigating an allegation of harassment when performance issues are also involved is a challenging task, in practice.  It is not unusual for managers or supervisors accused of harassment to defend their conduct as simply a question of carrying out the responsibilities associated with their role.  They may go to great lengths to demonstrate just how far below the mark the complainant fell and provide the investigator with documentation to support this position.  Some respondents may even suggest that the complainant is raising harassment concerns to try and excuse their performance problems.  Further, a person accused of harassment may cite the poor performance of the complainant as not only warranting criticism, but in fact necessitating a higher degree of supervisory intervention and scrutiny than other employees.

There is certainly nothing wrong with a respondent raising the issue: the fact that there is a performance problem may be relevant to a consideration of the overall context in which the events in question unfolded.  The difficulty is that, on receipt of such information, it can be very tempting to delve into an evaluation of the complainant’s work performance.  Venturing too far down such a path is not advisable.

First, the investigator may not necessarily be equipped with the requisite expertise to properly evaluate the quality of the employee’s work product.  Sometimes, it is a straightforward question.  For example, the sub-par performance may involve a pattern of tardiness that is easy to assess.  It either happened or it didn’t.  More often, the performance in question involves specialized knowledge and an understanding of the business context in which the employer operates.  Even if the investigator’s experience and qualifications enable her to engage in an informed evaluation of the complainant’s performance, doing so takes focus away from the investigator’s real task.  It can also result in the parties developing unrealistic expectations about the investigation process.

This relates to the second reason to avoid getting too deep into an assessment of the complainant’s performance: mandate creep.  The investigator is assigned a clearly defined mandate at the outset of the investigation.  This is ordinarily limited to an assessment of the allegations raised by the complainant.  When a respondent insists that the complainant’s performance justified increased criticism, the real question before the investigator is not whether the criticism was justified.  The investigator may even accept the respondent’s submission at face value and assume this is true.  The real question for the investigator is whether the criticism was delivered to the complainant in a belittling, demeaning, humiliating or hostile manner.

With these points in mind, focus on asking the parties questions that allow you to collect the evidence needed to determine whether performance management crosses the line. For example:

  • Ask about the timing and location in which the critical feedback was given. This can help you to determine if it was delivered in a public manner or if it was otherwise audible to colleagues.
  • Ask about the tone and volume if the criticism was given verbally. The interviewee may offer an inherently subjective description.  Probe further.  One person’s definition of “harsh” is another person’s definition of “direct” – you will need to get interviewees to explain what they mean by the particular terms used.
  • Ask if the specific words can be recalled. It is useful to determine whether the comments were fact based and objective or more of a personal attack.
  • Ask if there were opportunities to address shortcomings and whether support was offered to address any known obstacles faced by the employee.
  • Ask the complainant to describe the impact of the manager’s alleged conduct and comments – in terms of his or her immediate reaction in the moment it occurred, but also more globally, as it may have undermined his or her ability to carry out the job at hand.

We all want to reach our full potential.  And employers, who have a right to expect and demand the best of employees, need not be fearful of taking proactive steps to reach this goal.  With care and attention to the manner in which performance management is carried out, it can be achieved without crossing the boundaries of acceptable workplace conduct.

[1] Mortensen v. Convergys CMG Canada Limited Partnership 2015 CanLII 2630 (ON LRB)