harassment

Workplace harassment not limited to Hollywood

Increasing pressure to take allegations seriously has implications for condos
Wednesday, November 22, 2017
By Michelle Ervin

Hollywood is not the only workplace rife with harassment. Condo communities, with their complicated ecosystems of residents, employees, third-party service providers and suppliers, are regularly the scenes of inappropriate behaviour.

Consider the cleaner who stays awake at night worrying about the manager who comments on her physical appearance and massages her shoulders while she’s alone in the lunchroom. Or the manager who considers quitting under the stress of being micro-managed by one of his directors. Or the security guard who becomes ashamed to speak aloud because of the way some owners criticize her accented English.

These are all fictional but realistic accounts of on-the-job abuse raised earlier this month in the Condo Conference session Harassment: Up Close and Personal! The discussion comes as accusations of inappropriate behaviour by Hollywood heavyweights mount, reaching a critical mass whereby these reports are having real consequences for the careers of alleged perpetrators.

With victims finding the courage to come forward with their stories, cultural attitudes are shifting such that workplace harassment is becoming impossible to ignore, including in condo communities, which have duties to address accusations of inappropriate behaviour.

“Oftentimes our clients and residents do not consider themselves to be part of someone’s workplace — and that’s a natural assumption for them, because they’re at home — but it’s our workplace,” observed moderator Catherine Murdock, district manager at Del Property Management. “If an employee comes to you from any of your contractual sources — housekeeping, security, management, grounds-keeping — and they need to report abuse, please take them seriously.”

Courts weigh in on workplace harassment

Harassment is generally repetitive, unwelcome behaviour — physical, verbal or written — that creates discomfort. In condo communities, an act such as sending a series of emails making valid complaints can be acceptable or unacceptable, depending on how it’s carried out, said Patrick Greco, partner at Shibley Righton LLP.

Greco cited the case of York Condominium Corporation No. 163 v. Robinson, in which he served as counsel for the applicant, as an example. In a decision issued this spring, a judge ordered the respondent owner to stop her harassing behaviour and awarded $15,000 in costs to the applicant condo corporation. The behaviour in question included firing off missives that, in addition to expressing concerns about building maintenance, body-shamed the office manager.

“An owner has the right to make inquiries, an owner even has the right to criticize maintenance — they’re owners, they have a stake in this — but they can’t turn it into something personal that degrades, humiliates and harasses an individual on a property,” said Greco.

The decision in the Robinson case was based on provisions of the Condominium Act, which prohibits conduct on the common elements and in units that could harm a person; the Occupational Health and Safety Act, which prohibits workplace harassment; and the rules of the condo corporation.

Months earlier, the judge in Toronto Standard Condominium Corporation No. 2395 v. Wong relied on some of the same legislative provisions in issuing a similar compliance order, but not before one of the corporation’s employees subject to workplace harassment requested a transfer. The key difference in the Wong case was that the owner’s behaviour was erratic rather than intentional, said Greco, prompting counsel for the corporation to ask whether a mental examination was warranted.

The condo lawyer advocated taking a proactive approach to allegations of workplace harassment, carefully documenting any evidence along the way in case it’s needed later, so as to prevent these situations from escalating to the point where court intervention is required.

Policies provide framework for investigations

Following up on accusations of inappropriate behaviour is about managing risk, said condo lawyer Patricia Elia, of Elia Associates, which means mapping out under what circumstances the condo corporation will intervene. As examples, she said corporations should avoid taking on responsibilities that rightfully belong to other parties, such as contractors, and parties to shared facilities should hash out how liability for conduct that occurs on common property will be apportioned.

The details of how a condo corporation will address allegations should be captured in workplace harassment and violence policies, which changes to the Occupational Health and Safety Act made mandatory for employers close to a decade ago. These policies should define what constitutes inappropriate behaviour and provide for anonymous reporting and expeditious investigation, said Elia.

Directors can be guilty of workplace harassment, so they should establish rules governing how they comport themselves, too, whether that takes the form of a code of conduct or code of ethics.

“I’ve had cases where a director is harassing a property manager,” said Elia. “The property manager responds and reports this issue to their property management team; their bosses say to the corporation client, ‘If you don’t fix this, we’re going to sue the corporation.’”

In addition to defining what constitutes inappropriate behaviour, the condo lawyer recommended having a policy in place to affirm the community’s commitment to respecting human rights, which it has a duty to do under the law anyway. Information management policies likewise support workplace harassment and violence policies by setting out how the corporation will handle confidential data, such as in cases where questions of mental competency arise.

The investigation itself involves reviewing the incident, or incidents, in question, which may include interviewing the alleged perpetrator and victim as well as any witnesses. It’s important to be objective in posing questions, Elia cautioned, and the investigation ultimately needs to produce findings and resulting actions.

New legislation recognizes roadblocks to reporting

An investigation into workplace harassment can only occur if the inappropriate behaviour gets reported, and there are many reasons why victims may be reluctant to bring forward complaints.

“They don’t get reported because the fear of reprisal, of being labeled a trouble-maker, possibly losing your job,” said Murdock. “Or, in a very strange situation, if you have a very strong case, the fact that you may be given a promotion and asked to sign a gag order so it doesn’t get reported and nothing ever happens.”

Non-retaliation policies are one way condo corporations can remove barriers to reporting inappropriate behaviour in the workplace.

Last year, the Ontario government passed the Sexual Violence and Harassment Action Plan Act, which relaxed, and in some cases scrapped, legislated deadlines for bringing forward complaints.

“This is very important in recognizing the level of trauma that people actually go through when they are sexually and violently harassed or assaulted,” said Elia. “It takes time to heal, and even to have the courage to actually stand up for you own rights to find your voice.”

Discourse in condo communities demands rethink

Greco suggested that, more broadly, the current level of discourse in condo communities needs to be raised. He pointed to the refrain he often hears at raucous owners’ meetings — the corporation is compensating him handsomely — the implication being that he should just absorb the abuse.

“At the end, I get in my car, play some Metallica … and by the time I get home, I don’t have to go back to the building for a year,” said Greco. “It’s not the same for a cleaner or a manager going back to that the very next day.”

Michelle Ervin is the editor of CondoBusiness.

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