Hidden, psychological harassment can become a serious problem for workers and business
The rising number of complaints relating to workplace harassment, bullying and poisoned work environments has made psychological harassment a hot topic. Employers need to be aware of the potential liabilities, whether or not they happen to operate in a jurisdiction that has legislation specifically prohibiting psychological harassment.
Claims can be made even in the absence of such legislation, and the damages awarded can be significant. Furthermore, even if no legal claim is pursued, the behaviour can have a considerable impact on the bottom line and morale, leading to reduced productivity, increased absenteeism, turnover and a diminished reputation.
Psychological harassment can be hard to define, but it certainly includes physical or verbal intimidation, unnecessary yelling, name-calling, insults, derogatory comments, attacks on an individual’s reputation, attempts to make an individual look bad, isolation, inappropriate work assignment and unnecessary investigations. Such harassment can be perpetrated by managers, supervisors and co-workers, and employers can be held liable.
Psychological harassment — unlike forms of harassment governed by human rights legislation — is based on grounds other than that of race, religion and gender, or no particular ground at all — bullies don’t always have a reason.
In 2004, Quebec became the first province to adopt legislation prohibiting psychological harassment. The Labour Standards Act was amended to include a definition of psychological harassment and placed the onus on employers to take reasonable action to prevent such conduct in the workplace.
Attempts to introduce legislation prohibiting psychological harassment have been made in other Canadian jurisdictions with varying degrees of success. The federal and Ontario governments both tried to introduce prohibitions on psychological harassment in recent years but were unsuccessful.
Efforts to incorporate such provisions into occupational health and safety legislation have been successful in Saskatchewan, where legislation came into force on Oct. 1.
Saskatchewan’s provisions, as in Quebec, recognize psychological harassment as both repeated conduct and single, serious incidents with lasting harmful effects. However, Saskatchewan’s provisions establish an employer exemption for any reasonable action taken in relation to the management of workers.
In other provinces, claims based upon psychological harassment can be made through common law with constructive dismissal complaints and intentional infliction of emotional distress. So employers can be liable if they permit workplace conduct that adversely affects an employee’s integrity, regardless of whether or not psychological harassment legislation is in place.
Perhaps the best-known common law claim for psychological harassment is Shah v. Xerox Canada Ltd. Shah, a 12-year employee of Xerox with good performance reviews through his career, took on a new position. But he didn’t get along well with his new manager. Ultimately, Shah alleged the manager created an intolerable work environment. He left and filed a claim for constructive dismissal
According to the court, the manager’s conduct included critical performance reviews based on unsubstantiated concerns, a lack of understanding about Shah’s duties, unjustified probation and a general attitude characterized by the court as “authoritarian, impatient and intolerant.” The court agreed this behaviour constituted bullying and the employer’s failure to protect Shah from this oppressive work environment was a constructive dismissal. As a result, Shah was awarded damages equivalent to 12 months’ notice.
In the case of unionized employees, claims can be made through the grievance process based upon an alleged failure of an employer to live up to its obligations pursuant to a collective agreement.
Different workplaces and industries will have different standards of behaviour. Typically, the work environment of a law office will be quite different from that of a body shop. But certain minimum standards will always prevail. A defence based upon the argument such behaviour is acceptable in a particular workplace is unlikely to succeed if considered to be bullying or harassment.
For more information see:
•Shah v. Xerox Canada Ltd., 2000 CarswellOnt 831 (Ont. C.A.)
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.
Claims can be made even in the absence of such legislation, and the damages awarded can be significant. Furthermore, even if no legal claim is pursued, the behaviour can have a considerable impact on the bottom line and morale, leading to reduced productivity, increased absenteeism, turnover and a diminished reputation.
Psychological harassment can be hard to define, but it certainly includes physical or verbal intimidation, unnecessary yelling, name-calling, insults, derogatory comments, attacks on an individual’s reputation, attempts to make an individual look bad, isolation, inappropriate work assignment and unnecessary investigations. Such harassment can be perpetrated by managers, supervisors and co-workers, and employers can be held liable.
Psychological harassment — unlike forms of harassment governed by human rights legislation — is based on grounds other than that of race, religion and gender, or no particular ground at all — bullies don’t always have a reason.
In 2004, Quebec became the first province to adopt legislation prohibiting psychological harassment. The Labour Standards Act was amended to include a definition of psychological harassment and placed the onus on employers to take reasonable action to prevent such conduct in the workplace.
Attempts to introduce legislation prohibiting psychological harassment have been made in other Canadian jurisdictions with varying degrees of success. The federal and Ontario governments both tried to introduce prohibitions on psychological harassment in recent years but were unsuccessful.
Efforts to incorporate such provisions into occupational health and safety legislation have been successful in Saskatchewan, where legislation came into force on Oct. 1.
Saskatchewan’s provisions, as in Quebec, recognize psychological harassment as both repeated conduct and single, serious incidents with lasting harmful effects. However, Saskatchewan’s provisions establish an employer exemption for any reasonable action taken in relation to the management of workers.
In other provinces, claims based upon psychological harassment can be made through common law with constructive dismissal complaints and intentional infliction of emotional distress. So employers can be liable if they permit workplace conduct that adversely affects an employee’s integrity, regardless of whether or not psychological harassment legislation is in place.
Perhaps the best-known common law claim for psychological harassment is Shah v. Xerox Canada Ltd. Shah, a 12-year employee of Xerox with good performance reviews through his career, took on a new position. But he didn’t get along well with his new manager. Ultimately, Shah alleged the manager created an intolerable work environment. He left and filed a claim for constructive dismissal
According to the court, the manager’s conduct included critical performance reviews based on unsubstantiated concerns, a lack of understanding about Shah’s duties, unjustified probation and a general attitude characterized by the court as “authoritarian, impatient and intolerant.” The court agreed this behaviour constituted bullying and the employer’s failure to protect Shah from this oppressive work environment was a constructive dismissal. As a result, Shah was awarded damages equivalent to 12 months’ notice.
In the case of unionized employees, claims can be made through the grievance process based upon an alleged failure of an employer to live up to its obligations pursuant to a collective agreement.
Different workplaces and industries will have different standards of behaviour. Typically, the work environment of a law office will be quite different from that of a body shop. But certain minimum standards will always prevail. A defence based upon the argument such behaviour is acceptable in a particular workplace is unlikely to succeed if considered to be bullying or harassment.
For more information see:
•Shah v. Xerox Canada Ltd., 2000 CarswellOnt 831 (Ont. C.A.)
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.
