Date: 2010
Author: Daniel A. Lublin
Publication: Metro

Court’s judgement signals intolerance for manager’s off colour remarks

It is easier to be critical than correct. – Benjamin Disraeli
Today, much of the workforce views a manager’s criticism as “bullying” or “harassment”. As toxic bosses have become a greater liability, their employees no longer call their doctors seeking a note for a leave of absence. Now they call their lawyers. But as harassment is often in the eyes of the beholder, when will a tough boss justify a successful lawsuit?
Dora Cooke knew her eventual boss Patrice Comeau for most of her life. When Comeau and a partner opened a Sudbury, Ontario office of HTS Engineering Ltd., they needed an assistant and Cooke was offered the job. The relationship soon soured.
After only a few months, Cooke became wary of her boss. The two often argued and Cooke would usually end up in tears. Comeau expressed his expectations forcefully and sometimes with outbursts of anger. Cooke was often on the receiving end. He called Cooke an “idiot” and “pathetic” and gave her an IQ test, stating she would not pass the second question.
Matters came to a head when Cooke was accused of another mistake and told that her performance must improve. Cooke swiftly proclaimed that she was not the right fit for the job and left the offices never to return.
Cooke sued and claimed that as well as being bullied, she had been sexually harassed. Shocked by these serious allegations, Comeau and HTS defended these allegations all the way to a recent trial.
An Ontario judge rejected Cooke’s claim that she had been sexually harassed. Although the court was troubled by evidence that Comeau and Cooke frequently engaged in sexual banter, Cooke ultimately welcomed the conversations and therefore, it could not be said that she was sexually harassed.
Cooke had, however, been bullied. An employer is entitled to be critical of unsatisfactory performance and to take measures, disciplinary or otherwise, to remedy that problem. When those measures become so unreasonable that an employee cannot be expected to persevere, she may be able to resign and claim damages for constructive dismissal. Here, Comeau’s insulting language and outbursts of anger were enough to meet this test.
Cooke was awarded two months’ salary and an additional payment on account of her mental distress.
In the quest to strike an appropriate balance between legitimately criticising an employee’s performance and harassment at work, there are some recurring themes:

• Whether there is a workplace harassment policy and whether its details have been followed.
• Is criticism based on solely on work performance or are personal characteristics being challenged.
• Are inappropriate comments attached to performance management. No court would condone some of the comments that Comeau allegedly made.