Personal harassment in the workplace is continuing to garner attention.
Although there is no federal law banning bullying, employers still risk legal liability if they don’t actively prohibit the behaviour. A number of factors point to this conclusion, including:
When Constructive Isn’t Positive
Several court rulings have upheld claims of constructive dismissal when an employee quit because of personal harassment by co-workers.
The theory behind the rulings is that bullying in the workplace represents an employer’s breach of the implied contractual obligation to provide employeeswith civility, respect and dignity. That breach, in turn, allows the employee to consider that he or she has effectively been dismissed.
In Shah v. Xerox Canada Ltd.,for example, the Ontario Court of Appeal rejected the argument that to prove constructive dismissal, an employee must prove the employer breached a specific fundamental term of the employment contract. A specific breach may be necessary in some cases, the court ruled, but not when a pattern of bullying has been established.
Unfair treatment and bullying also can overturn a justifiable cause for dismissal. In Paitich v. Clarke Institute of Psychiatry, the Ontario Court of Appeal upheld a constructive dismissal ruling in the case of an employee who had been fired for writing insubordinate memos to management. The trial judge ruled that bullying that occurred before the memos and management’s failure to address the problem was tantamount to constructive dismissal.
When certain conditions are met, courts have ruled that an employer’s conduct constitutes intentional infliction of mental distress or nervous shock. In Prinzo v. Baycrest Centre for Geriatric Care, the Ontario Court of Appeal upheld damages of $15,000 for nervous shock suffered by an employee.
And in Zorn-Smith v. Bank of Montreal, the trial judge awarded $15,000 in mental distress damages to a fired bank employee, ruling that the employer’s “callous disregard” set the preconditions for intentional infliction of mental suffering. Those preconditions were: flagrant or outrageous conduct calculated to produce harm that results in a visible and provable illness.
- Successful lawsuits filed against employers (see right hand box);
- Quebec’s Labour Standards Act, which prohibits psychological harassment;
- Ontario’s Occupational Health and Safety Act, which requires all employers to protect their employees from the risk of violence. The law’s definition of violence includes threats that give employees reasonable grounds to believe they are at risk of physical injury;
- Saskatchewan’s Occupational Health and Safety (Harassment Prevention) Amendment Act, which prohibits psychological harassment, and
- Alberta’s Occupational Health and Safety Code bans workplace violence, which is broadly defined as any act in which a person is abused, threatened, or intimidated.
- The country’s Criminal Code includes offences that can be applied to bullying or cyber bullying, including criminal harassment, intimidation, threats and identity fraud. However there is nothing that explicitly mentions bullying or cyber bullying.
Canadian human rights legislation, of course, prohibits workplace harassment based on protected characteristics such as age, race, gender, sexual preference or disability. But bullying is different because it may not involve harassment on protected grounds.
Personal harassment also shouldn’t be confused with the differences of opinion or ordinary conflicts that arise in the workplace. Instead, bullying is behaviour that a reasonable person would consider humiliating, intimidating, undermining or threatening.
According to one study by the Workplace Bullying and Trauma Institute, one in six employees experience destructive bullying. The North American not-for-profit group also found that half of workplace bullies are women who target other women 84 per cent of the time. Male bullies target women 69 per cent of the time.
According to the Canada Safety Council, more than 80 per cent of bullies are managers or people in power and some of those are serial bullies who take aim at one employee until that person quits and then target another.
In some instances, bullies perceive their positions are threatened and work to eliminate the competition.
Don’t underestimate the financial costs of bullying. Personal harassment creates an unhealthy environment and can result in increased:
- Turnover and recruitment costs (according to some experts, bullies push out more than 75 per cent of their victims);
- Stress and related health consequences;
- Costs for Employee Assistance Programs (EAPs); and
- Safety risks.
Add to that decreased productivity, motivation and morale, as well as reduced customer service and customer confidence, and it’s easy to see how the costs can add up.
Bullying can also expose a business to grievances, lawsuits and damages because employees are increasingly suing on grounds that by tolerating or not actively banning the behaviour, an employer has violated a staff member’s fundamental right to be protected from physical and mental risks at work.
So, to protect your employees as well as help reduce your company’s legal exposure, you may want to consider including anti-bullying measures in your written employment policy handbook. To be effective, your company’s anti-bullying policy should:
1. Apply to everyone, including management, clients, independent contractors and others who deal with your company.
2. Clearly define and provide examples of what constitutes unacceptable behaviour.
3. State your company’s commitment to preventing workplace bullying and the consequences for violating the policy.
4. Encourage employees to report incidents of bullying and outline a confidential process for reporting them.
5. Assure that no reprisals will be made against reporting employees.
6. Outline the procedures for investigating and resolving complaints.
In addition, your company should:
- Train personnel to recognize bullying.
- Take measures to ensure that managers and supervisors treat complaints seriously and deal with them promptly.
- Provide impartial third party help to resolve situations, if necessary.
Insidious Forms of Behaviour
Bullying can take many forms. Some are obvious such as verbal abuse, threats, taunting and intimidation. Others are less up front and can include:
- Spreading malicious rumours.
- Making false allegations in company documents.
- Undermining a person’s work by, for example, providing the wrong information or withholding information.
- Constantly changing guidelines and expectations.
- Taking away responsibilities and making a person feel useless.
- Blocking applications for leave, training or promotion.
- Assigning unreasonable duties.
- Constantly and persistently criticizing work.
It’s not always easy to distinguish bullying from strong management or constructive criticism. In some cases, what appears to be bullying may be a personality clash. Be sure your policy takes the various forms of bullying into account and protects managers and supervisors, as well as employees.