Can severe criticism by a manager amount to harassment?

The short answer is no, unless there is a hostile or threatening element to the interaction.

In a recent Labour Arbitration matter, Toronto District School Board v Canadian Union of Public Employees, Local 4400, 2018 CanLII 67327 (ON LA), the Arbitrator considered whether severe criticism of an employee by their supervisor would amount to harassment.

The grievor, a custodian, claimed his manager engaged in workplace harassment when he singled him out by telling him how to clean parts of the washroom. Of course, being a custodian, he already knew how to conduct his tasks. The custodian brought his concerns to the employer, who shared their belief that the reported behaviour did not constitute harassment. Nonetheless, the employer conducted an investigation that concluded the same. The Arbitrator concluded that “even severe criticism of an employee by a supervisor attempting to deal with a perceived performance problem is not harassment … it only becomes harassment when it is done in a seriously hostile or intimidating manner or in bad faith.” The Arbitrator had the following to say:

It is imperative that an employer endeavour to provide a workplace free of harassment. The relatively recent “Bill 168” amendments to the Occupational Health and Safety Act (OHSA) are a testament to the importance of employees being able to work in an environment free from harassment. 

However, not every scenario of an unsatisfactory interaction between employees, and not every “employment bruise” necessarily warrant to be characterized as harassment. A finding of harassment is a strong indictment of wrongdoing. In this regard, the subjective viewpoint of an employee that he/she has been demeaned by the act(s) of another, even if indisputably sincere in nature, is not a sufficient basis for a finding of harassment. Specifically, the evidence must objectively suggest a “...conduct or a course of activities that involve hostility, importuning, badgering and intimidation or bullying that causes the person distress that is inimical to a safe and positive work environment”UFCW, Local 1518 and 55369 BC Ltd. (2007) 90 C.L.A.S. 94 (Larson).

[….]

In the case at hand, the grievor’s allegation of harassment against Mr. Sandy must also be weighed in the context of Mr. Sandy’s supervisory authority as a Head Caretaker. A supervisor has the inherent authority to direct a subordinate employee, and as suggested by Arbitrator Larson in UFCW, Local 1518 supra, normal supervisory duties such as directing, evaluating and critiquing an employee’s performance should not, in itself, give rise to a claim of harassment: 

.... giving directions, evaluating performance and even disciplining employees should not be considered harassment in the normal course of events provided that these normal management activities are not carried out in an abusive, demeaning or hostile manner and have a legitimate work place purpose. 

In other words, less than optimal management would not amount to harassment unless it had intimidating or hostile elements, for example, in tone or delivery. Further, if the exercise of management rights is conducted in bad faith, the incident could amount to harassment. If you require assistance conducting an investigation, please contact us.