One of the more challenging situations that face HR Departments today is an investigation into allegations of bullying.
Sometimes the behavior is so over-the-top and inexcusable that there is no doubt in the mind of most civilized individuals that bullying has occurred. And it makes it considerably easier when there are numerous witnesses to the bullying behavior.
But this occurs less frequently than do more hidden or subtle forms that occur behind closed doors or out of sight of others.
Problem of Perception
First of all, HR has to determine whether the described allegations constitute bullying or not. Frequently the allegations are of a “he said, she said” nature and are difficult, if not impossible, to verify.
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What do you do with a complaint such as “he stared at me in a threatening manner”? Outside of offering advice such as “squint your eyes and stare back” it is clear that there is a major difference in perception, but is it bullying?
What, exactly, constitutes bullying at work, and how might it differ from “simple” discourteous behavior? What would be your reaction to this actual situation in which an employee alleged harassment?
The applicant was asked to explain the nature of the harassment she experienced. She testified that co-workers often stood around her desk and mumbled. She believes that the mumbling was harassment, although she does not know what words were used. She testified that she also experienced harassment and bullying on occasion when she left at the end of the workday and when co-workers would surround her as she got on the elevator. She did not allege that there were any specific comments or actions on these occasions.
The applicant recalled that on one occasion, one of the co-workers who participated in the alleged harassment and bullying was talking to the applicant at the applicant’s desk. The applicant got up to retrieve something and, when she returned, she found a “half dead” fly on her desk. Since flies are never seen in the office environment, the applicant assumed that the co-worker had put the fly on her desk as part of the harassment and bullying. Ontario Human Rights Tribunal: Morris v. Ontario (Finance), 2011 HRTO 1889
False perceptions have real consequences, and one is only left to wonder how much the whole Tribunal process cost everyone involved – financially and psychologically.
Can a Single Action be Bullying?
In 2012, David K.L. Starkman, the Arbitrator in the case Peterborough Regional Health Centre v. Ontario Nurses’ Assn. (Withers Grievance) wrote: “ In this matter the grievor’s actions were extremely subtle, and in that sense were extremely insidious. Bullying and harassment can consist of a single incident, or a series of repeated incidents both of which can have great impact upon the victim of the behavior.”
In this situation, where the Arbitrator ruled that the actions, although subtle, were bullying, it is interesting to note that he sees that bullying may, in fact, consist of a single action. Many current definitions define bullying as repeated behaviors that constitute a pattern even though the actions do not have to be identical. In this case, an apparently oft repeated behavior was “staring, rolling her eyes or using excessive hand gestures or using a condescending tone of voice”.
However, in another case cited in the above arbitration case, that Arbitrator wrote:
“There is one more dimension that should be addressed. As I stated earlier in this award, harassment is a serious subject and allegations of such an offense must be dealt with in a serious way, as was the case here. The reverse is also true. Not every employment bruise should be treated under this process. It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred. The first responsibility of people in the workplace is to work out their own differences for themselves, if they can. If they cannot, and the threshold test of serious actions with significant consequences is met, this process can and should be involved where harassment is legitimately believed to have occurred. Otherwise, the process could itself be used as a means of obtaining vengeance against petty irritants or trivial concerns.”
The lesson for today? Deal with bullying allegations promptly and early. Going to arbitration or to court can be a crap shoot.