Workplace Bullying: What Employers Need to Know - LawNow Magazine

Workplace Bullying: What Employers Need to Know

photo of boss yelling at employeeBullying in the workplace is slightly different from bullying seen in the childhood sandbox. There is rarely physical violence or threats (although these are possible), and the tormentors may not always be the most obvious culprits. Instead, workplace bullying may not even be noticeable to an outsider unaware of the situation. Province by province, workplace laws are beginning to recognize that bullying extends beyond just a ‘difficult boss’ or ‘critical management style,’ and it is not okay. Yet a cruel joke, a snide quip at the water cooler, or treating a co-worker in any discriminatory fashion can constitute workplace bullying, and it is never okay.

In recent years, the law has sat up and taken notice of the problem. Some provinces have already adopted specific workplace legislation, while others are looking to move forward. A recent workplace insurance appeal in Ontario highlights some of the changing attitudes in that province, but workplaces everywhere are realizing just how serious a problem workplace bullying can be, and what needs to be done to stop it in its tracks.

What The Law Says

Quebec set the trend in 2004 when the Province’s Act representing Labour Standards (ALS) formally introduced prohibitions against ‘psychological harassment’ in the workplace. The ALS defines psychological harassment as “vexatious conduct that is manifested by repetitive behaviours, comments, acts, or gestures: that are hostile or unwanted; that adversely affect the employee’s dignity or psychological integrity; [and] that make the workplace unhealthy.” All Saskatchewan employers are obligated to develop a written harassment policy, and ensure that employees are proactively protected from such instances. It emphasizes that all employees deserve a workplace free from harassment, and this caveat protects employees not covered under the entirety of the Act, such as in-home caregivers, working students, and some others.

Saskatchewan followed suit in 2007, expanding their Occupational Health and Safety Act (OHS) to include specific prohibitions on harassment based on prohibited grounds (grounds commonly enumerated in human rights legislation), and personal harassment – which includes bullying. The OHS defines this as “any inappropriate conduct, comment, display, action, or gesture by a person that: adversely affects a worker’s psychological or physical well-being; and, the perpetrator knows or ought to reasonably know would cause the worker to be humiliated or intimidated.” The legislation says examples of this harassing conduct include: jokes, malicious gossip, sabotage of another’s work, and refusing to co-operate with others. All Saskatchewan employers are obligated to develop a written harassment policy, and ensure that employees are proactively protected from such instances. The policy guide goes into in-depth recommendations on designing harassment policies, and appropriate workplace training.

Other provinces have also made prohibitions against workplace bullying and harassment expressly clear. WorkSafeBC provides employers with template tool kits including a policy guide, sample training, tips on investigations, and posters available for display. The first step to prevention is the implementation of thorough written policies that are clearly expressed to all members of a workplace. The Alberta Learning Information Service also offers definitions of workplace bullying similar to those outlined in other provinces, along with suggestions on how to develop and implement workplace policies, and the legal implications workplace bullying can have if it reaches the level of human rights discrimination or workplace violence. Province by province, workplace laws are beginning to recognize that bullying extends beyond just a ‘difficult boss’ or ‘critical management style,’ and it is not okay.

In Ontario, recent case law highlights this changing approach.

A Case In Point

An April 2014 decision from the Workplace Safety and Insurance Appeals Tribunal (WSIAT) highlights the changing approach the law has taken to workplace bullying. In that case, a nurse with a three-decade career had spent the last 12 years being bullied by a doctor who undermined her work with frequent interruptions and public criticism. The nurse was forced to leave her position, and was subsequently treated for anxiety and depression.

Initially, the Workplace Safety and Insurance Board (WSIB) denied the nurse’s claim. The Workplace Safety and Insurance Act in Ontario only covered mental health claims that were due to “an acute reaction to a sudden and unexpected traumatic event.” The claimant filed a Charter challenge saying that, At the heart of protecting employees against harassment and discrimination is an employer’s responsibility to prevent it in the first place. effectively, the legislation discriminated against her mental health claims as a result of workplace bullying, suggesting that her illness was not real. She succeeded in her appeal.

In its reasons, the WSIAT held that mental health claims should include those that develop over time, not just instances stemming from a specific sudden event.   Ignoring these claims would be akin to denying claims for a work-related back injury that had developed over the long term, or exclusion of all lung cancer claims except for those related to asbestos exposure. Doing so would expressly deny insurance coverage to the bulk of workplace illnesses that develop over prolonged periods, and the nurse’s mental health claim is no different. The appeal decision effectively opens the door for broader insurance coverage of mental health claims in Ontario.

Taking A Closer Look

At the heart of protecting employees against harassment and discrimination is an employer’s responsibility to prevent it in the first place. The other half of the employer’s responsibility is the importance of conducting thorough workplace investigations once the first signs of bullying or harassment arise. This can be accomplished through effective policies and thorough workplace investigations as required.

The first step to prevention is the implementation of thorough written policies that are clearly expressed to all members of a workplace. While some provinces have legislated the creation of harassment policies, all workplaces could benefit from policies clearly expressing what conduct is not permissible, and applicable penalties for any violations. These policies should be included in all employee manuals, and should also be readily available to all employees as a reference guide. Clear policies not only serve as a guideline for good conduct, but also offer clear standards for employers as to what conduct is prohibited, and what the appropriate punishments for violations should be.

The other half of the employer’s responsibility is the importance of conducting thorough workplace investigations once the first signs of bullying or harassment arise. Investigations should be led by a trained professional, such as an employment lawyer or certified HR expert, who can properly assess the situation and issue the appropriate recommendations. Failure by employers or managers to take the problem seriously will only lead to increased challenges, as situations can quickly spiral out of control. An investigator’s report will ensure employers are able to respond with full knowledge of the situation, and implement the appropriate measures.

Workplace bullying is a serious problem in Canadian workplaces. Yet as the law sits up and takes notice, and employers become more aware of the problem and how to deal with it, the message to perpetrators will become crystal clear – bullying is never okay, in any venue.

 

Authors:

Jordan Rodney
Jordan Rodney is the Managing Partner of Rodney Employment Law.
 

Shaun Bernstein
Shaun Bernstein is a 3rd year law student at University of Windsor, Faculty of Law (2015).
 


A Publication of CPLEA