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Can A Workplace Policy in and of Itself Constitute Harassment? | The HR Space

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Labour, Employment and Human Rights Bulletin

There is no doubt that ink will continue to spill on the notion of workplace harassment, especially as it relates to an employer's right to manage its employees. In one recent decision the Court of Appeal of Québec (PDF - available in French only) provided some clarity by confirming that a workplace policy on managing disability leaves cannot, in and of itself, constitute harassment of employees.

The Facts

On December 20, 2012, the complainant, a factory worker, was informed that his vacation request was denied even though his supervisor had previously told him that this same request would be granted. The complainant was furious.

The next morning, the complainant visited a doctor and obtained a certificate recommending a medical leave of absence until January 4, 2013. The employer refused to accept the doctor's note because it was vague and, as a result, the complainant had failed to follow the applicable policies. Specifically, the employer's policy required that for certain types of leaves, the medical note had to include, among other things, detailed reasons justifying the absence from work. The complainant was asked to comply with the policy and to submit a more detailed medical note. 

A second medical note was obtained. It, too, was rejected by the employer for the same reason. The employer then instructed the complainant to report for work for his scheduled shifts. 

The complainant consulted with a physician for a third time and obtained yet another medical certificate. This time, the doctor's note was accepted by the employer. The complainant was told that his medical leave of absence was finally approved but only as of the date of the third medical note. The absence was not approved retroactively to the date he originally left work.

Given the employer's refusal to accept the first two medical certificates and the employer's repeated requests for the complainant to report for work, the union filed a grievance alleging harassment against three of the employer's representatives and denouncing the employer's policy on medical leaves. The grievance was ultimately referred to arbitration.

The Arbitration Decision

The arbitrator partially allowed the grievance (PDF - available in French only). He held that the attitude of the employer's representatives could not be described as harassment, but conceded that the employer's policy constituted an "abusive and unreasonable exercise of management rights" and that it amounted to "psychological or professional harassment" of employees. Therefore, the arbitrator concluded that the policy itself constituted harassment.

The Superior Court's Decision

The Superior Court granted the employer's application for judicial review and overturned the arbitrator's decision regarding the policy on the basis that it was unreasonable (PDF - available in French only). The Superior Court confirmed that the arbitrator could not conclude that the policy in and of itself constituted harassment because harassment must be embodied by individuals. Furthermore, the arbitrator's order to put in place ways and means to eliminate any risk of psychological harassment in the management and handling of requests for sick leave imposed on the employer an obligation of result, which was not provided for in the law, nor in the collective agreement.

The Court of Appeal's Decision

The Court of Appeal agreed. It found that the workplace policy that required the employee to provide additional information regarding his medical condition was valid.  The employer was justified in refusing an absence that did not fulfill the conditions set out in the policy. There was simply no basis for a finding that such a policy could give rise to harassment, especially when the arbitrator had concluded that the managers who had enforced the policy did not harass the complainant.

Accordingly, the Court of Appeal upheld the Superior Court's decision thereby confirming that a policy cannot, in and of itself, constitute harassment.


This important decision confirms that in exercising their management rights, employers can develop policies or procedures that authorize the employer to follow-up on employee absences and to request more detailed medical documentation without fear that the policy itself may constitute harassment. Of course, the policy may still result in harassment if it is not implemented or applied in a fair manner. For that reason alone, it is critically important that any such policies be carefully drafted to limit any potential for abuse which may ultimately result in a workplace harassment complaint.

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