The good fight against workplace bullies (Legal View)

4 strategies to help mitigate risks posed by workplace bullying and harassment
By Laura Williams
|Canadian HR Reporter|Last Updated: 11/16/2015

Of the many workplace issues faced by employers in Canada, workplace psychological harassment and bullying is becoming increasingly prominent and, in turn, recognized in employment law. 


Courts across the country are actively acknowledging the impact workplace harassment can have on an employees’ physical and mental well-being — not to mention their workplace productivity — and delivering rulings designed to compensate employees for psychological injuries.


This is a major departure from decades past, when a touch of bullying was considered a veritable rite of passage in the corporate world. A boss picking on an employee was not only acceptable, but a part of life. Many bullied employees would eventually mete out similar treatment to colleagues and their direct reports.


Further spiking the incidence of this misconduct is the prevalence of cyberbullying, which can extend well beyond the workplace. Cyberbullying is just as insidious in its reach and impact, and with email and social media, far easier to carry out. 


Cyberbullying policy enforcement, on the other hand, poses a far greater challenge for time-pressed and resource-limited employers. As a result, many incidents of online psychological harassment go unnoticed by employers struggling to manage and grow their businesses, let alone monitor employees’ electronic communications both inside and outside the workplace.


Despite the increasing awareness of harassment and bullying in the workplace, the incidence of psychological abuse is still substantial. Seventy per cent of Canadian employees report some concern related to psychological health and safety, according to a 2012 survey by Ipsos Reid of more than 6,600 employees. 


The toll this kind of harassment has on employees and employers cannot be underestimated. Victims of workplace psychological harassment can experience a range of debilitating health effects, including anger, feelings of frustration, inability to sleep, stomach pains, headaches, inability to concentrate, and low morale and productivity, according to the Canadian Centre for Occupational Health and Safety.


In addition to the health problems, psychological harassment can negatively affect an organization’s performance. For example, lost productivity related to absenteeism, presenteeism and employee turnover costs employers $6.3 billion each year, according to a 2011 study by the Mental Health Commission of Canada. These costs include expenses related to stress-related illnesses, short- and long-term disability claims, use of employer-assisted plans, human rights violations, health and safety breaches and low employee morale.


Ontario case

One recent case law development demonstrates the trend of recognizing the effects of psychological harassment and bullying on employees, as one tribunal expanded entitlement to workers’ compensation benefits for mental stress. 


In April 2014, Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) declared a section of the Ontario Workplace Safety and Insurance Act relating to mental stress to be unconstitutional and it refused to apply the provisions. 


The legislation distinguishes physical from psychological injuries, and sections 13(4) and (5) disqualify employees from making workers’  compensation claims for mental stress, except where employees suffer from traumatic mental stress, which involves “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of… employment.” 


As such, entitlement would only be granted where there is a “sudden” or “traumatic” event, and would be denied for mental stress caused over a period of time.


These provisions were considered by WSIAT in a case involving an Ontario nurse who faced psychological harassment and bullying from a doctor for whom she worked for 12 years. The nurse was regularly embarrassed in front of her peers or patients, and was required to communicate with the doctor only through written notes, among other demeaning abuses. 


When the nurse raised her concerns to a team leader, she faced effective demotion with a reduction in responsibilities, although her job title went unchanged. She would soon develop a psychological injury that included anxiety and depression, and was unable to work. 


 The nurse’s subsequent workers’ compensation claim was denied because her mental stress was not “an acute reaction to a sudden and unexpected traumatic event” as per the legislation’s criteria for receiving benefits relating to mental stress. As a result, the nurse challenged the decision in an appeal to WSIAT, arguing her equality rights had been violated under the Canadian Charter of Rights and Freedoms.


The tribunal ruled the Workplace Safety and Insurance Board (WSIB)’s criteria was unconstitutional on the grounds psychological injuries can occur over time and needn’t be “sudden and unexpected.” WSIAT declined to apply this provision and granted the nurse entitlement to benefits for mental stress. 


The repercussions from the ruling remain to be seen — WSIAT decisions are only binding on parties to the appeal — but its direction could shape formal policy or lead to legislative changes across Ontario and other provinces in the years ahead.


It appears this approach to entitlement for mental stress has already gained a fraction as it has recently been followed by WSIAT in Decision No. 1945/10, to grant a worker entitlement to benefits for mental stress. 


In tandem with legal developments, there has been a growing body of guidelines and policies encouraging employers to create psychologically safe workplaces. One such guideline is the Canadian Standards Association’s National Standard for Psychological Health and Safety in the Workplace, which proposes establishing and maintaining a psychological health and safety management system for the workplace. 


This includes the identification and elimination of workplace hazards that pose a psychological risk, an assessment and control of workplace hazards, implementing practices that support a psychologically safe workplace, and creating a workplace culture that promotes psychological health and safety.


While these are voluntary standards, employers should note they build on existing employer obligations under the Occupational Health and Safety Act.


Specifically, an employer is required to take every precaution reasonable to protect employees, to inform employees of potential workplace hazards, and to identify, eliminate or reduce workplace risks.


Employers are increasingly recognizing the potential impact of bullying and psychological harassment on employee engagement, employer brand and bottom-line performance. Also, in accordance with legislative requirements, employers are implementing comprehensive workplace violence and harassment policies, which can be effective tools to address psychological harassment. 


But harassment in all forms remains an ongoing threat to employee health and safety, and to the success of organizations that employ them. 


Strategies to reduce risk

With this in mind, here are four strategies to help mitigate much of the risk posed by psychological harassment and bullying in the workplace:


 Develop an effective employee policy manual. A comprehensive employee policy manual should include a Code of Conduct, which clearly defines acceptable behaviour in all realms — including the physical workplace and online with email and social media. 


A policy manual’s anti-bullying measures should include the following: 


• A zero-tolerance commitment statement from the organization’s leadership team.


• Clauses outlining the policy’s applicability to management, employees, clients, and other third-party vendors.


• A clear definition of workplace bullying and examples of unacceptable behaviour.


• A clear process for employees to follow when reporting incidents.


• A clear outline of the organization’s workplace investigation process. 


• An outline of steps the organization will follow to take corrective action when a bullying incident is confirmed.


• A commitment to confidentiality and discretion.


• A no-reprisal and non-retaliation statement.


Provide management training. This is a glaring oversight for so many organizations that may be inclined to reward employees with promotions to managerial roles, without properly assessing managerial competency or providing adequate management training.


To avoid ongoing exposure to lawsuits or human rights complaints, any comprehensive management training program must cover psychological harassment and bullying. Managers should be coached on everything from identifying bullying to managing complaints, then dealing with these often difficult situations in a way that ensures legislative compliance and minimizes the impact on employee productivity and workplace culture. 


Investigate all harassment and bullying allegations. Allegations of harassment must be properly investigated and documented.


If not, an organization could face lawsuits, human rights or Ministry of Labour complaints. If a company lacks an HR team or staff member with investigation experience, management should be prepared to outsource the task to a third party, such as an experienced employment lawyer.


When conducted properly, the process will take time, involve internal interviews to conduct fact-finding relating to the allegations,  provide the responding party with an opportunity to respond to allegations, and include a thorough review of all information collected over the course of the investigation process. The parties should also be allowed to respond to any allegations made against them. 


Focus on cultural fit during the hiring process. The best way to avoid hiring bullies is to ensure an employer’s recruitment process involves some combination of psychometric testing, attitudinal assessment and a staged interview process. 


Many companies focus solely on skills or operational matches, but cultural fit should be a major focus of the process. There are times, however, when even the most comprehensive recruitment process fails to weed out potential bullies.


In those cases, management should consider terminating the employment relationship with confirmed offenders. 


Employees who psychologically harass or bully their colleagues are a toxic workplace presence. The longer they’re allowed to linger, the greater the risk and negative impact on workplace culture and employee engagement. 


For more information see:

• Decision No. 1945/10, 2015 CarswellOnt 1801 (Ont. W.S.I.A.T.).


Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 or lwilliams@williamshrlaw.com.

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