How Does a Workplace Bullying Code Apply After Work Hours?
We recently had a night out at the casino following a work function. After five hours of drinking, I got into a conversation with a fellow employee, who is also one of my best friends, about whether she is happy in her job. It got a little heated due to alcohol and misunderstanding. An HR person came rushing over, telling me to leave. I told her it didn’t concern her. As far as I was concerned, I was having a conversation with my bestie, but the HR person went to the CEO the next day and misrepresented the situation, saying I was bullying and harassing my friend. As a result, I have been suspended pending an investigation. My question is: I thought we had finished work and were drinking, on our own accord, in a public place. So how does the bullying and harassment code come into it?
THE FIRST ANSWER
Partner, Keel Cottrelle LLP
Employees are protected under Canadian laws from bullying and harassment by employers or co-workers in the workplace.
For example, in Ontario, the Occupational Health and Safety Act requires employers to have a workplace harassment policy and a program to implement the policy. Workplace harassment is broadly defined as a course of unwelcome comments or conduct, and may include offensive or intimidating comments, circulating offensive pictures or material, etc. Human-rights legislation also protects employees from harassment in the workplace. Canadian courts have recognized the obligation of employers to protect employees against physical and psychological harassment in the workplace.
The definition of workplace has been broadly interpreted by courts, tribunals and arbitrators, and most employer policies have an expanded definition of the workplace. The protection of employees in the workplace goes far beyond incidents occurring at the office, shop or plant, or during working hours.
For example, workplace harassment can occur from comments made after work hours on social media. The workplace can include off-site social events, and subsequent activities after the employer’s event has ended, reasonably considered to be job related. In your case, this is a question for the investigator to determine, starting with your employer’s harassment policy, which you should be familiar with.
While your employer’s party may have ended, your co-worker’s right to protection from workplace harassment continued. You chose to ignore the instructions from your HR supervisor. Your employer has a legal obligation to investigate this incident.
THE SECOND ANSWER
Principal, Pathfinder Coaching and Consulting, Vancouver
Consider why the company is taking this action against you. It is curious that the company is pursuing a private investigation if this was a one-off, outside-of-work situation involving alcohol. From what you have described, this situation could easily be resolved by apologizing to your “bestie,” and asking her to speak to HR on your behalf. If she indicates that she does not feel that you were bullying or harassing her, this case has no validity. There will be nothing to investigate – unless there are other complaints and concerns about you regarding harassment and bullying in the company.
If your “bestie” does not accept your apology and refuses to intercede, if she feels harassed or bullied by you in and outside of the workplace, then you have a whole other situation to deal with.
Have a union steward or an employment lawyer speak to HR to see if an apology and training on respectful workplace practices will suffice. You can also try approaching HR before seeking the advice of the union or an employment lawyer about your rights. You will likely need to do remedial action to prevent the company from proceeding with a formal investigation.