As of Nov. 1, employers in British Columbia are required to abide by new occupational health and safety policies targeting workplace bullying and harassment.
The new policies came about after revisions to B.C.’s Workers’ Compensation Act in 2012. These include compensation for diagnosed mental disorders that were a reaction to a traumatic event or caused by significant work-related stressors — such as bullying and harassment — in the course of employment.
And the claims appear to be rising: In the year prior to the legislative amendments, there were 1,047 claims registered for psychological injury, according to Roberta Ellis, senior vice-president of human resources and corporate services at WorkSafeBC.
But the following year, from July 2012 to Sept. 30, 2013, there were 2,842 claims — with 702 including bullying and harassment — though these claims have not necessarily been accepted, she said.
The new OHS policies essentially direct employers to take certain steps to minimize the possibility or probability of those types of claims, according to Gary Clarke, a partner at Stikeman Elliott in Calgary.
“I don’t think employers are really upset about the notion they have to ensure no bullying and harassment because that’s to their advantage in so many ways — it reduces their costs, it reduces their chances of absenteeism, it improves morale. Employee harassment is bad for business.”
On Oct. 2, WorkSafeBC released a tool kit that included an outline of employer duties, including:
• developing a policy statement
• taking steps to prevent or minimize bullying and harassment
• developing and implementing procedures for reporting and dealing with incidents and complaints
• informing workers of the policy statement and steps taken to prevent bullying and harassment
• training both workers and supervisors to recognize the potential for bullying and harassment, to respond, and to follow the procedures for reporting
• annually reviewing the policy statement and procedures.
“The policies are practical and down to earth,” said Ellis. “We really tried to place the bullying and harassment policies right into the normal OSH procedures that any employer or supervisor or worker would be familiar with, so develop the policy, educate and train, provide a mechanism for reporting the incident, investigate it and take steps to fix it.”
Employers should now have some simple measures in place to address the issue, said Earl Phillips, a partner at McCarthy Tétrault in Vancouver.
“I hope a lot of them are taking the issue seriously. I’m not a fan of regulation for the sake of regulation, by any means, but I really do think that if employers take this seriously, they can create a better and more productive and happier workplace…. and try to deal with otherwise endemic high school-type conduct that often goes on.”
Many employers will already have a policy in this regard. If they don’t, that’s where they should get started, said Cori Maedel, CEO of HR consulting firm Jouta in Vancouver.
“It’s also about making sure that the policy’s culturally aligned to your organization, so that it’s not ‘Though shall not,’ Ideally, it’s about what’s the behaviour they expect, not what they don’t expect. And it’s ‘Who do we want to be as an employer?’ That’s a great place to start.”
In the past, people might have hoped bullying and harassment issues would go away, but now HR and managers have a duty to inquire or investigate if they suspect something’s going on, said Maedel.
“It’s that idea that you can’t put a blind eye to it anymore — if you see something’s happening, act. And part of that’s training all your managers as well on what it is they’re expected to do…. so that somebody can’t say, ‘Well, I didn’t know that was expected of me.’”
Employers should also take note that the “bullies” could include anyone engaging with staff, such as customers, suppliers or sub-contractors, she said.
“The definition of ‘person’ is much broader and so organizations need to be very mindful of other people’s practices. So with a general contractor, they need to make sure anybody coming on their site is compliant.”
Preventing and minimizing bullying, harassment
Another challenge concerns the requirement to take steps to prevent or minimize bullying and harassment. It’s hard to know exactly what is required, said Phillips.
“It seems to me if you can say, ‘Yes, we did modify our policy, we’ve got a policy statement. Yes, we have policy procedures and, yes, we have communicated that and we have training planned,’ then I think that amounts to taking steps to prevent or minimize workplace bullying and harassment.”
WorkSafeBC didn’t want to be overly prescriptive about the requirements because every kind of workplace and bullying behaviour is different, said Ellis, citing as examples patients who commit violent acts at long-term care homes or armed robberies at convenience stores.
“It is important that there be some room for employers to have some flexibility to address the situation relative to their workplace,” she said.
“One of the ways we can prevent bullying and harassment from happening is dealing with it when it does happen.”
Employers must also train workers and supervisors to recognize the potential for bullying and harassment and know how to respond, said Phillips.
“The big one’s that going to take time, and it doesn’t have to be done by Nov. 1 — but I think you want to be able to tell WorkSafeBC that you’ve got plans for that — is you need to train supervisors and workers on the whole issue,” he said.
“You can make it part of regular safety meetings. It’s not that you have to set aside paid time in an extraordinary way, you can try to do in efficient way.”
Not about performance management
WorkSafeBC is also emphasizing that bullying and harassment do not include: differences of opinion; constructive feedback, guidance or advice; and reasonable actions taken by an employer or supervisor relating to the management, direction or discipline of workers.
“We’re talking about yelling and swearing or humiliating initiation practices. Those kinds of things are clearly intended to humiliate or intimidate an individual,” said Ellis.
“Part of what the policy does is shine the light of day on an activity that often flourishes in the dark and in silence, and give people the reassurance that if you bring that matter forward, because very often they don’t… the bully will be dealt with.”
The key is to make supervisors understand the difference between what does and does not constitute bullying, said Phillips.
“That doesn’t mean the worker won’t cry harassment anytime they get a negative review but supervisors need to be trained and understand what is the difference and they need to understand how to do proper discipline and proper performance management,” he said.
“Employees also need to understand some of the interactions that go on in the workplace may not be pleasant, may be silly and may be stupid but (are) not necessarily harassment either.”
The training is where all the heavy lifting will be, especially for supervisors because they’re the ones who are going to be charged with administering the policy on behalf of employers, said Clarke.
“And when you’re dealing with bullying and harassment, just because it’s major, it’s much more difficult and challenging than the sorts of things supervisors are used to dealing with.”
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