More than a year after a law came into effect in Quebec to clamp down on workplace bullying, human resources departments are still waiting for case law to help clarify a number of issues.
“There are still some grey areas around what that line is that distinguishes managing and harassing,” said Francine Dupéré, vice-president of human resources at SNC Technologies and president of Quebec’s HR association.
“To what extent can a manager manage declining performance without being accused of psychological harassment?”
The prohibition against workplace psychological harassment came into effect on June 1, 2004. In the year since, officials at the Labour Standards Commission received more than 2,500 complaints. All were from private-sector, non-unionized workplaces, as unionized and public-sector employees have to bring up complaints through other channels.
The number surpassed the commission’s expectations to such extent that the commission had to increase the number of investigators from 10 to 34, said spokesperson Nathalie Bégin. In addition to these 34 investigators working exclusively on psychological harassment cases, the commission also has a network of 47 mediators to step in and help employers resolve issues.
Of the 2,500 complaints received, commission staff have sorted through about half, with half still pending an investigation. One in three cases resulted in mediation, the purpose of which was to put a stop to the harmful situation. To date, 95 cases have been referred to the Labour Relations Commission, the tribunal for labour standards complaints.
Contrary to fears that circulated among certain lobby groups that this law would be used by employees to file false claims as a way to harm their managers or their colleagues, the number of frivolous complaints were very, very small, said Bégin.
Jocelyn Girard, interim director general of the Labour Standards Commission, told a conference this summer that regardless of how commission staff dealt with the cases, “in nine out of 10 times, we’re talking about conduct that is humiliating, that is hurtful and repetitive.”
Eight in 10 complaints, Girard added, involved a person in a position of authority. Six in 10 were filed by women.
Of the 95 cases that were transferred to the Labour Relations Commission, nine have been settled out of court. One case was rejected on the basis that the alleged harassment took place after the complainant already left the service of the employer. Two files are in hearing and 34 cases are pending.
Dupéré, of Quebec’s HR association, said what she takes from the Labour Standards Commission statistics is that the problem is real and pressing.
“We’re talking about language that can no longer be simply taken as ‘shop talk.’ We’re talking about comments such as, ‘You can’t do anything right,’ or ‘We’re going to give the job to someone else.’ Or we’re talking about one person who’s different from others, either because of race or sex, and who’s targeted for that,” said Dupéré.
For HR departments, added Dupéré, much work still needs to be done to educate employees as to what’s harassment and what isn’t.
“Generally, what employers have done is adopt a policy that prohibits harassment and a procedure to back up the policy. What we would suggest is to do more information sharing and more training on what harassment is.”
Also needing attention is how to set out a process to investigate a complaint swiftly and confidentially.
“This is more difficult because if you take a complaint one person makes against a group of people, how do you investigate this complaint and take down each person’s version of events and still make sure that people don’t talk about it?” She added that among the issues that still have to be clarified by the courts is to what extent should an employer discipline a bully at the workplace. “Do employers have to resort to dismissal right away or is a probation period enough?”
Through efforts by the Quebec HR association to raise awareness around the issue, Dupéré has seen employers put in various prevention mechanisms, including hotlines and ombuds offices. Some employers have adopted the rule that if an allegation is serious enough, the parties involved have to take time off with pay to allow an investigation to take place without disruption.
According to a poll conducted by the Labour Standards Commission, two-thirds of large employers have taken initiatives to comply with the law, while only one-third of small employers have done the same.
At the Montreal office of the Canadian Federation of Independent Business (CFIB), André Lavoie said he’s not surprised that only one-third has taken any steps to address bullying.
“Back in 2002, we did a poll of our members, and 95 per cent said they had never encountered any harassment at their workplaces,” said Lavoie, senior policy analyst at the CFIB.
“I’m not saying that people have got their eyes closed to the problem. Perhaps in a small business environment the channels of communication are clearer. Owners and managers in a small business are closer to their employees and would tend to be more able to address situations as they develop.”
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