Preventing Workplace Bullying Becoming Employers’ Responsibility

Sunday, March 2, 2008

Universities must now mitigate risks associated with psychological harassment

Federal and provincial governments originally enacted occupational health and safety (OH&S) statutes to protect the physical safety of workers. Governments are now modifying these statutes and other related legislation to include workers’ psychological well-being.

Consequently, universities may be held responsible if their employees are bullied at work—whether by superiors, peers, or even students or suppliers. Universities must be aware of this shifting tide to avoid fines or lawsuits.

Why the move toward expanding the definition of workplace safety to include psychological well-being? Victims of workplace bullying feel trapped and highly stressed by their poisoned work environments. At best, they suffer quietly. At worst, they respond as Pierre LeBrun did on 6 April 1999 when he shot and killed four OC Transpo workers in Ottawa before killing himself. LeBrun had worked at OC Transpo and had been bullied and teased about his stuttering.

The coroner’s inquest into the OC Transpo shootings recommended that federal and provincial governments pass legislation to prevent workplace violence and that employers create policies to address violence and harassment.

Legislation in Canada

Quebec put the first anti-bullying law in North America into effect on 1 June 2004. The province amended its Act Respecting Labour Standards to ensure that “every employee has a right to a work environment free from psychological harassment.” The amendment also states that “employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.”

The Quebec law defined psychological harassment as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affects an employee’s dignity or psychological or physical integrity and results in a harmful work environment for the employee.”

Other provinces have also addressed workplace harassment (bullying and abuse of power fall under this category). On 1 November 2006, Manitoba amended its Workplace Safety and Health Act to require that employers take steps to prevent workplace harassment, investigate allegations of workplace harassment, and allow employees to refuse to work in certain circumstances after harassment has occurred. And on 1 October 2007, Saskatchewan amended its Occupational Health and Safety Act to include personal harassment in the workplace.

Moreover, Canadian courts and tribunals are more broadly defining personal harassment at work. This broader interpretation can hold employers accountable for the way that supervisors, managers, and colleagues treat employees.

“In the past, the courts associated a safe work environment with a physically safe work environment,” says Anne Baxter, Manager, Risk and Safety Services with the University of Lethbridge. “But now the courts are saying that the workplace must also be psychologically safe. It has to be free of many of the stresses that people face today.”

Defining Workplace Harassment

Workplace harassment can assume many forms, but at minimum, it constitutes any of the following behaviours:

  • Spreading malicious rumors
  • Belittling a victim’s opinions
  • Spying or stalking
  • Persistently criticizing or scrutinizing a victim
  • Tampering with someone’s desk, work space, or belongings
  • Excluding or ignoring a victim
  • Undermining or sabotaging a victim’s work
  • Blocking a victim’s career advancement

So, who exhibits these behaviours? They’re the same people who bullied their classmates on the schoolyard playgrounds. The bullies have grown up, and so have their victims, but the dynamics of their relationships remain.

According to the Canada Safety Council, 80 percent of bullies are bosses, some are co-workers, and a few are employees who harass their employers. Equally likely to be men or women, bullies tend to be insecure and lack social skills and empathy. They also enjoy attacking and diminishing the capable people around them. Their motivation? To control others.

The Consequences of Inaction

In the work world, these bitter relationships can cost employers. The Canadian Centre for Occupational Health and Safety states that workplaces affected by bullying could see drops in productivity and increases in absenteeism, stress, accident risks, and costs for employee assistance programs.

“Organizations also run the risk of losing good people if they fail to address workplace bullying,” says Ms. Baxter. “In addition, employers face fines or lawsuits for failing to do something that they should have done.” Ms. Baxter cited a recent case, Charleton v. Ontario (Ministry of Community Safety and Correctional Services), in which a woman was awarded $20,000 after her employer was deemed negligent in protecting her from harassment.

Other potential outcomes of unchecked bullying include grievances under collective agreements, human rights violations, constructive dismissal risks, fines for intentional infliction of mental anguish, and liability in tort for failure to respond.

Protecting Your University

In June 2005, law firm Osler, Hoskin & Harcourt LLP published the following advice pertaining to psychological harassment in the workplace. “As a result of this new risk involving both statutory and civil liability, employers would be well-advised to review policies and procedures, codes of conduct, reporting mechanisms and training programs to ensure that these kinds of behaviours are identified and addressed in a timely manner. Employers should also make sure that prohibitions against these behaviours are clear and that penalties are appropriate.” This advice is equally valid today.

So what can employers do to both protect themselves from fines or lawsuits associated with psychological harassment and create healthy work environments? Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com, recommends the following:

  • Increase your understanding and awareness of the signs of harassment, bullying, and violence. Make management and employees aware of these signs as well.
  • Create a harassment and violence prevention program and policy, and make the policy well known and easily accessible. The policy should inform employees that your organization is against harassment and workplace violence. Spell out unacceptable behaviour such as bullying.
  • Include steps to identify potential or actual risks of harassment or violence including bullying. Institute a proper system for reporting, investigating, recording, and dealing with conflict.
  • Investigate complaints quickly, while maintaining confidentiality and protecting the rights of all involved. Take all complaints seriously.
  • Be prepared to discipline employees guilty of harassment.

“Universities today have a legal obligation to do something about bullying in the workplace,” says Ms. Baxter. “They are responsible for providing a safe work environment and for protecting employees from foreseeable harm—which includes harm from bullying.”

Anyone who has suffered the ill effects of an imperious boss or colleague can well appreciate the relief that this obligation promises to bring to workplaces throughout Canada.