“Smiley Face”, Friendly Tone Showed E-mail Exchange Not Harassing: Arbitrator

A supervisor’s e-mails to an employee were not harassing, an arbitrator has held, noting the employee’s friendly tone – “great game Thurs night” – and use of the “smiley face” in his replies to the supervisor’s e-mails.

The employee, who was unionized, filed a grievance alleging that the employer, by permitting the supervisor’s allegedly-harassing e-mails, violated an article of the collective agreement that required the employer to “make reasonable provisions for the safety and health” of employees. 

The e-mail exchange was about problems with the employee’s time cards.  The employee claimed that the supervisor’s questions about his time cards were akin to “calling me a thief and a liar”.

The arbitrator cited the following definition of harassment, from another arbitration case:

“Harassment includes words, gestures and actions which tend to annoy, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness.  A single act, which has a harmful effect, may also constitute harassment.”

The arbitrator decided that the supervisor was simply fulfilling his legitimate responsibilities in his supervisory position, attempting to resolve discrepancies in the employee’s recorded hours of work. 

The employee’s friendly tone in his reply to the supervisor’s e-mails, was also noted by the arbitrator.  In one e-mail, the employee wrote, “p.s. great game Thurs night”, and he used his nickname “Chiser” and a “smiley face”.  In another e-mail, the employee addressed the supervisor, “Hey Eddie, . . . we can chat next week” and also added a “smiley face”.  The tone of the e-mail exchange did not show any animosity towards the employee.

This decision demonstrates the wisdom of supervisors using a temperate tone, wherever possible, in their e-mails to employees. It also shows that a supervisor’s legitimate exercise of his or her duties will not, in general, be considered harassment.

Kinark Child & Family Services Syl Apps Youth Centre v Ontario Public Service Employees Union, Local 213, 2012 CanLII 97669 (ON LA)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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