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Legally Speaking

Creating a respectful workplace? Don’t start with the law

Once grievances move into any sort of formal process, positions and feelings become entrenched, taking the parties further away from resolution.

BY CHERYL FOY | NOV 09 2020

This column is a request to colleagues across the country to work together to create cultures inside your universities that allow you to resolve conflict in a way that makes your workplace culture-positive and welcoming. Much of what I’m saying in this column is not new. The cultures in our respective workplaces arise from the patterns of behaviour in which we collectively engage. Generally, there is an excessive reliance on investigation and legal processes inside our institutions, and insufficient willingness from individuals to own their respective parts in the creation of that culture and to participate in informal conflict resolution processes that generate much more positive outcomes. We all know this. However, we don’t seem to want to apply what we know when it comes to personal conflict.

I have many times sat across the table from people I work with in the context of complaints, grievances and litigation. Often the reason we’re all there is that the colleague sitting across the table has been hurt or offended and/or treated in a way that the colleague alleges to be contrary to the law. I have witnessed time and time again that the process hurts more than hinders. Once grievances or complaints move into any sort of formal process, including investigation, positions and feelings become entrenched, taking the parties further away from resolution. As these complaints move yet further into any type of litigation, the process becomes adversarial. An adversarial process is an entirely ineffective way to resolve disputes in the workplace among parties that will continue to work together.

We all want to feel respected and valued in our workplaces. To do that, all of us need to support and work toward a workplace culture built on behavioural norms and expectations that reinforce respect and value. The workplace culture is the culture we create together whether through deliberate action or inaction. Unfortunately, too many members of our communities see themselves as having no role, or worse, refuse to take a positive role in improving workplace culture. Too many of us, like siblings to their parents, run to authority figures within their institutions to solve disputes that would be better resolved informally between the disputants.

Law is a blunt instrument

Much of the work we do as in-house lawyers involves advising our university clients when members of our community have experiences that cause them to feel disrespected, unvalued and victimized. These experiences range from behaviour that isn’t illegal per se, such as uncivil behaviour, all the way to behaviour that would be considered illegal (harassing, discriminatory, violent or hateful behaviour). The experiences involve disputes between a variety of members of our internal groups: students, staff and faculty.

Generally, people inexperienced with the law expect the law to be more black and white, and legal processes to be more helpful than those of us who work with it every day. It is this gap between reality and expectations that is a cause of a client’s frustrations with their counsel.   Inside our workplaces, to say that the law is a blunt instrument in providing redress is a gross understatement.

I acknowledge that there are situations where informal processes are inappropriate (think of situations involving power imbalance and violence). For most other types of conflict, legal processes and reliance on the law is both entirely inadequate and inappropriate. While the law can sometimes make someone retract a statement, it cannot obliterate the fact that the hurtful statement was made and it can’t figure out a path forward. The law provides at best a rough framework within which a positive workplace culture can be created. There are several reasons for this.

Processes are always less friendly than complainants expect

The law provides formal processes within which disputes can be resolved. Again, there’s a massive body of work studying the effectiveness of legal processes, the impact on the participants, and the role that the processes play in restricting access to justice.

A complainant may welcome an investigation only to find that the process is longer than expected, that uncomfortable and challenging questions are asked, and that in the end the investigator finds a truth that is not the truth the complainant believes in. A complainant may show up for her day in court (more often a boardroom with an arbitrator, or a tribunal hearing room that is much less formal than a traditional courtroom) to participate in a process that is mystifying and not friendly, with arguments taking place about all sorts of procedural and evidentiary matters that leave the average person wondering when their story will be heard.

The way that complainants are forced to tell their stories is also disconcerting as they are led through a direct examination by their own counsel, answering questions rather than speaking freely. And then the responding party has the right to test a complainant’s evidence. The first way that this is done is through cross-examination – it is not until you’ve been subjected to cross-examination that you understand how effective, frustrating, alienating and uncomfortable it can be.

Respondents find these processes equally troubling, stressful and alienating. Needless to say, a process that leaves participants disappointed, hurt, angry, feeling misunderstood or unfairly treated is not a process that leads to positive workplace outcomes. People usually still have to work together at the end of the day.

There may be no remedy because lots of behaviour is not illegal

The last point to makes is that the law and legal processes may offer no remedy at all. The scope of protection the law provides is poorly understood. The first thing to know about the law is that the law provides recourse for a lot of things but there’s a lot of offensive or troubling activity which is not illegal.

In response to the question, “Can that person say that to me?”, my general answer is that anyone can say anything. Unless the statement is defamatory, discriminatory (including speech that is intended to incite hate) or harassing (as that term is legally defined), then the law offers the offended person no remedy. Subject to university policy, behaviour that is simply mean or uncivil or disrespectful isn’t illegal. If the behaviour isn’t illegal then the law offers no remedy. In the end, then, an investigation into a conflict that results in no finding of wrongdoing, leaves both parties back where they started, having only served to put everyone through an uncomfortable, time-consuming and expensive process that provides no resolution.

If, in times of conflict, we avoid the conflict by engaging in formal processes that essentially “kick the can down the road,” our workplaces won’t get better. We won’t get better at resolving conflict. If we can’t do it internally, how can we be models for the type of conflict resolution we want to see out in the world? How can we be leaders for our students?

ABOUT CHERYL FOY
Cheryl Foy
Cheryl Foy is university secretary and general counsel, office of the university secretariat and general counsel, at Ontario Tech University.
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  1. David Seljak / November 12, 2020 at 09:36

    Thank you for this wonderful, clear, and concise article! I have had parallel conversations as president of our small union. I have had to explain to colleagues time and again the difference between a formal grievance and feeling “aggrieved”. If the Dean was impolite to you, that is not harassment (unless this behaviour is based on the prohibited grounds you outlined above). It is a sign that the Dean is not a nice person. There is no legal remedy. The proper response is to not like them.