Building a civil, respectful workplace

Recent cases shed light on what’s required for psychologically safe workplace
By Owen Mahoney
|Canadian HR Reporter|Last Updated: 04/24/2012

Bullying is a particularly pernicious form of harassment. It’s an attempt to intimidate and exert control over another individual, whether physically or psychologically, covertly or overtly.

It also involves belittlement and degradation. At its most extreme, bullying can result in physical assault, injury and even death, but it most commonly manifests in mental assault and injury.

Several high-profile cases highlighting the effect of bullying on worker mental health, along with other developments in the law, have contributed to an emerging consensus that an employer’s duty to protect worker health and safety includes threats to psychological and mental health.

For example, the Bill 168 amendments to Ontario’s Occupational Health and Safety Act, which came into force in 2010, extend legal protections against harassment to all workers, not just those harassed because of a prohibited ground of discrimination. This provides a new tool to be used against bullying in the workplace.

Legal trends over the last decade point to an emerging duty for employers to provide and maintain a psychologically safe workplace for employees, according to Martin Shain, a workplace mental health expert and author of Tracking the Perfect Legal Storm, a 2010 report prepared for the Mental Health Commission of Canada.

“A perfect legal storm is brewing in the area of mental health protection at work,” he said. “This storm brings with it a rising tide of liability for employers in connection with failure to provide or maintain a psychologically safe workplace.

“The unmistakable common thread is the increasing insistence of judges, arbitrators and commissioners upon more civil and respectful behaviour in the workplace and avoidance of conduct that a reasonable person should foresee as leading to mental injury.”

This developing consensus extends to considering the contract of employment “as one that contains implicit terms for psychological protection from egregious acts of harassment and discrimination,” he said.

Shain pointed to cases in which excessive overtime “lays the groundwork for a claim of negligent infliction of mental suffering based on failure to foresee the likely consequences of excessive work demands.”

One such case is the 2003 Ontario Superior Court of Justice ruling in Zorn-Smith v. Bank of Montreal.

Susanne Zorn-Smith, a long-term employee, sued the bank for wrongful dismissal after being driven into depression because of an unreasonable workload and then being terminated while on disability leave.

“This callous disregard for the health of an employee was flagrant and outrageous,” said the court. “That (she) would suffer a further burnout was predictable — the only question was when it would come. It was foreseeable that such a burnout would cause her mental suffering.”

In addition to damages of 16 months’ wages in lieu of notice, the court awarded Zorn-Smith an additional $15,000 for mental suffering.

Given what is known about the effects of bullying, it’s no stretch to imagine failure to anticipate the consequences of workplace bullying would be similarly seen as negligent infliction of mental suffering. There is no shortage of literature and case precedent to demonstrate the kinds of psychological and physical effects bullying can have on people, leading to chronic stress, depression, anxiety and even suicide.

A case illustrating how costly bullying can be to the employer is the British Columbia Supreme Court ruling in Sulz v. Canada (Atty. General).

Nancy Sulz, an officer in the RCMP detachment in Merritt, B.C., was subjected to bullying and harassment from her detachment commander and supervisors for years. It rendered her so clinically depressed she could no longer work.

Sulz was found to be so psychologically battered by the conduct of the detachment commander she was unable to return to her career in the RCMP and remained “competitively unemployable in that she is only capable of working at uncomplicated tasks on a part-time basis, in a stress-free environment,” said the court in the 2006 decision.

Noting the severity of the impact of this bullying, the court awarded Sulz $225,000 for past wage loss, $600,000 for future wage loss and $125,000 for general damages, for a total award of $950,000, in addition to her costs. Employers simply cannot afford to have workplace cultures characterized by bullying, especially if the bully is a supervisor or manager.

Bullying can also have a toxic effect on the workplace. A workplace with bullying is a poisoned work environment people will naturally try to avoid or leave, resulting in increased absenteeism and turnover, along with decreased morale.

In addition to legal costs, that could mean higher costs for recruitment and retention, increased use of employee assistance programs (EAPs) and a loss of reputation.

At its worst, bullying can lead to violence. Pierre LeBrun, an employee at OC Transpo in Ottawa, was harassed for years by co-workers because of his stutter. Management was aware this was going on but did nothing to stop it. On April 6, 1999, LeBrun shot six co-workers, killing four, before turning his gun on himself.

These incidents and others have sharpened people’s awareness of the extreme harm that can result from bullying. It is no longer thought individuals should learn how to handle bullying on their own or that enduring bullying can be a character-builder. Bullies are toxic individuals who can exact a terrible toll from their targets.

Several provinces in Canada have expanded protection against harassment beyond human rights law. In 2004, Quebec amended its Labour Standards Act to prohibit “psychological harassment” in the workplace. In 2007, Saskatchewan amended its Occupational Health and Safety Act to expand the definition of harassment to include personal harassment, which it equates specifically with bullying. Ontario’s Occupational Health and Safety Act has similarly extended the definition of harassment to include personal harassment.

And in February 2011, Manitoba introduced a new workplace health and safety regulation to protect workers against psychological harassment, including bullying, intimidation and humiliation.

Bullying is not restricted to people in positions of authority. In 2011, in Kingston v. CUPE Local 109, the arbitrator upheld a decision by the City of Kingston to fire a 28-year employee with an admitted and lengthy history of bullying after she threatened a co-worker’s life. The arbitrator held uttering a threat in the workplace is to be seen as an act of violence in itself. The classification of threatening language as workplace violence represents a clear and significant change to the law in Ontario.

The arbitrator described the Bill 168 amendments as requiring “an employer (to) protect a worker from a hazardous person in the workplace.” There is another term for such a hazardous person — bully.

As the Sulz case shows, bullying can have career-ending and permanently disabling impacts on the victims. As the LeBrun case shows, it can metastasize into deadly violence.

Employers cannot afford to do nothing. Due diligence requires employers to:

•develop unambiguous anti-harassment and anti-violence policies

•train employees and management on these policies

•set out a fair, thorough, unbiased and objective process for investigating complaints

•avoid practices, such as routine over-assignment of overtime and extra work, that are a threat to employees’ mental health and well-being.

Employers need to adjust their focus to work toward a psychologically safe workplace, “one that does not permit harm to employee mental health… in which every practical effort is made to avoid reasonably foreseeable injury to the mental health of employees,” said Shain.

A workplace where employees feel the employer will have their back if they take action against a bullying co-worker or supervisor will retain its best people, and make it clear to abusers and bullies they need to change their behaviour if they wish to remain employed.

Owen J. Mahoney is an associate at HR Proactive in Hamilton and previously was an investigator at the Ontario Human Rights Commission. For more information, phone (888) 552-1155 or visit www.hrproactive.com or www.harassmentintheworkplace.ca.

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