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Defining a “Poisoned Work Environment” in an OHSA Investigation

Posted By Ashley Lattal, Lattal Law Conflict Resolution Services, Wednesday, July 26, 2017
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Ashley LattalThe terms “poisoned work environment” (“PWE”), “hostile work environment” and “toxic work environment” are now often used by employees to describe work environments that they find to be uncomfortable and negative whether or not the conduct they are experiencing is based on prohibited grounds.  In other words, these terms are being used to describe incidents of personal harassment arising under the OHSA, as well as prohibited grounds harassment. Yet, there is, based on my research, still no clear legal definition for these terms in the OHSA context. 

For prohibited grounds cases, the concept of a PWE is well established.  One case stated the importance of the concept as follows: “there may be known instances of harassment by anonymous employees, or of known harassing conduct not caught by [s. 5(2) of the Ontario Human Rights Code] because no one perpetrator indulged in a ‘course’ of such conduct, or the member of the minority group discriminated against by having to work in that environment may not have been the person harassed”.  McKinnon v. Ontario (Ministry of Correctional Services), [1998] O.H.R.B.I.D. No. 10, citing Ghosh v. Domglas Inc. et al. (1992), 17 C.H.R.R. D/216. 

The concept of a PWE in non-grounds cases is mentioned in some case law but it is not clearly defined.  The Ontario Public Service Grievance Board considered the definition of a PWE in a non-prohibited grounds case as follows:

The duty to provide a work place where an employee can work was described as equivalent to the duty to provide a work place that is free of harassment, not intolerable or poisoned.Defining a poisoned work environment in the circumstances is not a straightforward matter. The only definition of poisoned work environment in evidence is the one in the [applicable Policy].  [That definition is one based upon prohibited grounds.]



Although a non-grounds based definition of a poisoned work was not specifically articulated, I note that the applicable…policy provided as follows, in a footnote at page 12:

Management must not condone any kind of discrimination and harassment and must also take appropriate and timely action even if the discrimination or harassment falls outside of the application and scope of this policy. Processes used to address complaints under the WDHP policy may also be used to resolve disputes falling outside of the scope of this policy, for example, personal harassment.

Implicit in the argument was the idea that the definition of poisoned work environment was applicable by analogy to any unhealthy situation in the work place. And non-grounds based harassment has been the subject of successful grievances. See for instance, Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225 (Shime). The employer's response to this argument was not a rejection of the notion that there is an obligation to prevent or remediate a poisoned work environment. Rather, the employer's argument centred more on the idea that the grievor was largely responsible for the situation in which he found himself. Nonetheless, the fact that there is no established definition of a non-grounds based poisoned work environment in evidence, makes it difficult to state with any certainty the extent of the lack of health in the workplace which would warrant the designation. Certainly, the facts here are not at the level of the sustained course of abusive personal harassment endured by the grievor in the TTC case cited just above.Cardoza v. Ontario (Ministry of Community  Safety and Correctional Services), [2011] O.P.S.G.B.A. No. 14.  [emphasis added]

Another case cautioned against “loose” use of the term PWE.  Note that PWE was clearly defined by the Policy in this case (i.e., “a negative, hostile or unpleasant workplace due to comments or conduct that tend to be demeaning [that may] result from a serious and single event, remark or action”). 

The Grievor and the Union were quite loose throughout these adjudicative proceedings with the words, “toxic” or “poisonous work environment” in debasing both Ms. Hamilton and Mr. Monid.  These are damning words connoting very serious acts of alleged misconduct by these two managerial employees. Thus when they are bandied about in such a reckless or disingenuous manner by what the Board has concluded is a disgruntled Grievor who was dissatisfied with her performance appraisals the Union has the obligation to discharge an onus to prove those charges on cogent evidence.  When the Union fails to do so as it has utterly failed in the instant case, it is appropriate for the Board to make it clear that there is no basis to the claims of “bullying, harassment and discrimination” by these two presumed respected members of management, lest there be any residual damage to their professional reputations as a consequence of the mere leveling of such spurious allegations against them by the Grievor.  Ontario Public Service Employees Union v. Ontario, 2017 CanLII 16719 (ON GSB) [emphasis added]

In addition to a lack of a clear definition in the case law in the context of a non-prohibited grounds case, the term is often not clearly defined by employer policy.  In fact, employers often have no such definition in their applicable policies or they have a definition that is applicable only in cases of prohibited ground-based harassment. 

The investigator must decide how to proceed where no definition is provided in the applicable policy. I do not purport to have a definitive answer to this question.  However, it is a question each investigator ought to give due consideration to before making findings that could be difficult to defend without a clear approach. 

Below are several tips that may assist in determining that approach. 

  1. Consider the use of the term PWE. It is often the case that this term is used loosely to describe what is, in fact, personal harassment and the facts simply do not fall within the concept of a PWE.  Explore with the complainant what he/she means by that term and ensure your mandate encompasses what the actual complaint entails.

It may be the case that the term PWE is not used by the parties but the allegations nonetheless invoke the concept of a PWE.  Consider, in consultation with your client, whether the scope of the investigation ought to be expanded to investigate those allegations and, if so, what definition will be used for PWE.    

  1. Check the Policy.  Is “PWE” defined in the context of both prohibited grounds and personal harassment?  If it is, the investigator is in luck and can simply apply the policy definition to the facts of the case.

If it is not, consideration should be given to how the investigator will determine what is and is not a PWE.

  1. Apply existing PWE definition.  Some investigators will simply apply the grounds-based definition to personal harassment cases.  Other investigators do not define “poisoned work environment” in their reports where there is no applicable definition and, instead, simply determine whether or not, in their professional view, the facts support a finding of a PWE. 

The risk in both approaches seems obvious—it may lead to doubt as to the legitimacy of the findings around whether a PWE does or does not exist.  As stated in the OPSEU v. Ontario case referred to above, the lack of a clear definition “makes it difficult to state with any certainty the extent of the lack of health in the workplace which would warrant the designation” of a PWE.  To moderate that risk, it may be helpful to acknowledge in the report the lack of clarity around the definition in the context of personal harassment and explain the rationale for the selected definition.

  1. Consider other Findings.  If there is no policy definition, an investigator may steer clear of applying a definition that may not, in fact, be applicable (such as a prohibited grounds definition) until the case law on this point becomes clearer. Consider whether it might be best to comment upon the existence of a “negative” or “dysfunctional” work environment rather than determining whether a term of art like a PWE applies in the circumstances. 
  1. Consult Employment Counsel.  If there is no definition in the policy, consider having the client seek advice from employment counsel to determine an appropriate definition that does not set an unintended precedent for that employer.
  1. Consider amendment of Policy.   It certainly makes our jobs as investigators simpler when PWE is clearly defined, given the frequent use of this term by complainants.  If the client is seeking recommendations, it might make sense to advise them to update their policies to include a PWE definition for all types of harassment to provide clarity. This ought to be based upon advice from the employer’s legal counsel to ensure that the selected definition makes sense for the organization. 

By Ashley Lattal, Lattal Law Conflict Resolution Services
Ashley is a lawyer, workplace investigator and mediator.  She is the owner of Lattal Law and can be contacted at ashley@lattallaw.com.

 

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