Blog Post #495 – Bullying Bosses: When Harassment is Not Discrimination

By Linda McKay-Panos | November 4, 2012

What legal remedies do employees have if they are verbally or non-verbally bullied by their supervisor or co-workers? In the workplace, bullying can include behaviours such as: damaging your reputation; humiliating you in public; accusing you of lack of effort; calling you names; insulting, teasing, or intimidating you; preventing your access to opportunities; isolating you physically or socially; imposing undue pressure to produce work; setting impossible deadlines; making consistent unnecessary disruptions; failing to give you credit; assigning meaningless tasks; setting you up for failure; or removing responsibility (C. Rayner, H. Hoel, C. Cooper, Workplace Bullying: What We Know, Who is to Blame and What We Can Do, London: Taylor and Francis, 2002).

What are some of the social and economic impacts of workplace bullying? Research, in the United Kingdom, shows that one-third to one-half of stress-related illness is due to workplace bullying. A report tabled in the British Parliament estimated that 40 million working days are lost each year because of bullying.

In Canada, there has been some legal response to the problem of workplace violence. Occupational health and safety laws in a number of jurisdictions, including the federal sphere (transportation companies, banks, airlines), British Columbia, Alberta, Saskatchewan, Manitoba, and Nova Scotia directly address workplace violence as a health and safety issue. For example, Alberta’s Occupational Health and Safety Act, requires employers to develop a policy and procedures respecting potential workplace violence. Section 391 requires employers to instruct workers on how to recognize workplace violence; communicate the organization’s policy and procedures related to workplace violence; develop appropriate responses to workplace violence; and develop procedures for reporting, investigating, and documenting incidents of workplace violence.

While these provincial and federal codes address violence in the workplace, what about harassment (e.g., verbal or non-verbal bullying)? While there is growing recognition of workplace bullying/harassment as a significant problem, and some companies have harassment policies, the only legal remedy available in most jurisdictions across Canada is to make a complaint under human rights law.

There are limitations to this process, however. The behaviour must be based on discrimination in an area recognized by the human rights code(s). For example, if the discriminatory harassment in the employment setting is based on race, religion, gender, or other such ground, the human rights law could provide a remedy.

However, in many cases, harassment is based on other grounds or perhaps grounds that are not easily identifiable. In these cases, aside from perhaps launching a civil suit for a tort (e.g., of the intentional infliction of mental distress), there is not much in the way of legal protection from this problem.

One exception is Quebec’s Act Respecting Labour Standards which prohibits “psychological” harassment (R.S.Q. c. N-1.1, ss 81.18 and 81.19). Also, Ontario has introduced Bill 168, An Act to amend the Occupational Health and Safety Act which deals with violence and harassment in the workplace.

Ontario’s Bill 168 defines workplace violence and harassment as follows: “workplace harassment” means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known as unwelcome”; and “workplace violence” means “(a) the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.”

Under Bill 168, every Ontario employer that regularly employs more than five workers must:
 develop and post a policy addressing workplace violence and harassment;
 develop a program to implement the policy;
 include measures to control risk of workplace violence and harassment, emergency response procedures, reporting procedures to be followed by workers, and investigation procedures;
 take every reasonable precaution for the protection of a worker if the employer knows or ought reasonably to know that there is a likelihood that the safety of a worker might be endangered at the workplace by an act of domestic violence;
 provide information and instruction to workers on its workplace violence and harassment policy and program; and
 disclose to its workers the risk of violence from a person with a history of violent behaviour who they may encounter in the course of employment.

Finally, Bill 168 adds that an employee can refuse work if there is workplace violence. The endangered employee is required to stay only “as near as reasonably possible to his or her work station.”

As the costs (both economic and social) of harassment and violence in the workplace are quite considerable, it is positive that the Ontario government is seeking to address this problem through legislation. This is especially so in the case of harassment, where often, the harassment is not based on a ground of discrimination covered under human rights codes. Therefore it is necessary to provide another legal avenue for addressing this increasing problem. Hopefully the education provided about the harassment policy and programs will have the added effect of reducing harassment in the workplace.

My opinion

I have been directly involved in a couple of harassment and bullying cases in the workplace claims. It seems the MOL has to ensure the company has a violence and harassment policy in place but does not fine companies for violations to those policies. The expectation is that it should be dealt with by the HR department.

Outrageous!

Ensure that your company complies with section 32.0.1 of the OHSA. Your companies will benefit morally, ethically and financially when there is a guarantee to the rights of your workers. If not, then lost-time claims begin to go up and your WSIB rates will go up as well. In extreme cases, lawsuits can be a direct result.

You must protect your workforce.

Remember – In Ontario, “ALL Accidents are Preventable”

HRS Group Inc. has a great team that can help you with all your health and safety needs including ‘Due Diligence’, ‘Violence and Harassment’ and ‘Standard Operating Procedures’. Contact Deborah toll free at 1-877-907-7744 or locally at 705-749-1259.

We can also be reached at 

‘Work’ and ‘Play’ safe.

Daniel L. Beal

CHSEP – Foundation Level
VP & Senior Trainer
HRS Group Inc.