Employment lawyer says there is a massive business case for an effective and proactive, zero-tolerance approach
HR professionals have a tough job with competing demands and not a lot of thanks.
What if they could focus on just one aspect of the operation and improve culture, increase employee productivity and health, reduce downtime/absenteeism, and increase profitability?
I think they can – and a concerted approach to bullying and harassment in the workplace is that panacea.
Research shows that bullying and harassment (B&H) entirely undermines our workplaces. While it is not necessary a “hot” topic that creates flashy headlines, it is without doubt an insidious, daily occurrence in many work environments that demands immediate attention.
Bullying and harassment is a culture-killer and can also lead to legal liability on several fronts. However, an effective strategy to address this issue can be the best thing you can do for your organization.
Legal overview
In British Columbia, B&H is largely the domain of WorkSafeBC, which enforces the Workers’ Compensation Act (including the Occupational Health and Safety Regulation) and the workers compensation system in general.
However, like in other jurisdiction across Canada, workplace B&H often becomes more than just an o issue occupational health and safety issue and frequently involves allegations of discrimination and claims of constructive dismissal as a result of a “toxic workplace.”
Here are some of the important considerations to bear in mind when tackling this tough issue. While I do so from the vantage point of (and in reference to) practice in BC, the moving parts will apply in many, if not most, jurisdictions across Canada (including federally regulated workplaces).
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Occupational health and safety
B&H falls squarely within the Workers Compensation Act (BC) and, in particular, the OH&S Regulation and WorkSafeBC policies.
The definition of B&H is as follows (WorkSafeBC Policy P2-21-2): “A worker is bullied and harassed when someone takes an action that he or she knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.”
While the definition focuses on a worker as the subject of the B&H conduct, it is critical to note that perpetrators under the definition can really be anyone – co-workers, suppliers, customers, contractors or any third party. So long as a worker is subject to B&H, there is a duty to act.
Importantly, there are explicit boundaries to what B&H is intended to address. WorkSafeBC Policy P2-21-2 explicitly excludes managerial and supervisory functions from the definition of B&H. Therefore, duties like scheduling, work allocation and discipline do not constitute B&H (assuming that they are carried out properly and in good faith).
On that token, owners, employers, supervisors ,and employees all have obligations not to engage in B&H and to take steps to deal with it if it occurs. While we will not delve into the legislative duties of each of these stakeholders, employers have important and specific duties including:
- The requirement to have and maintain a B&H policy
- To train staff in the policy
- To enforce the policy
- To review the policy annually (which means updating and retraining as necessary).
The requirements for all levels of an organization to prevent and act on B&H provides an excellent rationale for action – it is legally required. Therefore, by empowering staff at all levels to act if they observe or experience B&H (and explain that everyone is actually expected and required to do in a contextually appropriate and safe way), we can start to foster a sense of cultural ownership in our workplaces that is self-perpetuating.
When employees see that ownership and management take the issue seriously and support its staff in addressing the issue, then they will feel even more inclined to report B&H and/or take appropriate steps to address it right away when noticed. This reinforcement loop becomes stronger when ownership and management take meaningful disciplinary or other action when B&H is found to have occurred.
Employees will not fear retaliation. Instead, they will have increased feelings of psychological and physical safety, as well as a stronger sense of ownership and an investment in the creation and maintenance of workplace culture – which fosters wellbeing and further reinforces collaborative responsibility for the organization and its aims.
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Human rights
Unfortunately in practice, we deal with allegations of B&H that involve comments or negative conduct that relates to a victim’s race, religion, sex, gender identity or expression, or any of the other protected grounds under the BC Human Rights Code – and similar human rights legislation in other jurisdictions – which prohibits discrimination based on a protected ground in the area of employment.
Given the nature of B&H, it is all-too-common for perpetrators to marginalize, exclude or otherwise mistreat a worker because of actual or perceived “differences” or characteristics that the perpetrator does not share, such as language, place of origin, ancestry, political belief, sexual orientation, or age.
Therefore, when navigating B&H complaints, it is prudent to bear in mind the requirements of the applicable human rights legislation and any human rights policies in place in the workplace.
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Contract/common law
Furthermore, the nature of B&H often results in the allegation that the workplace has turned toxic for the victim. From our vantage point as workplace lawyers, we reframe this concern slightly and examine whether the work environment remains viable or whether the employment relationship is so fractured as to render continued employment unviable. This situation often arises when the employer fails to take any (or any meaningful) action to curtail and deal with B&H in the workplace.
Therefore, if the health and safety and discriminatory aspects of B&H were not enough, HR professionals and managers need to be mindful of potential constructive dismissal claims and demands for severance and bad faith, aggravated and/or punitive damages.
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In a nutshell
It is not my practice to advise through fearmongering. Instead, I prefer to highlight the potential issues at play and highlight the numerous benefits to be gained from proper and proactive management of B&H.
In my opinion, in addition to minimizing legal liability, there is a massive business case for an effective and proactive, zero-tolerance approach to B&H in our workplaces. While this approach starts with a proper policy, this needs to be actioned empowering each level of the organization to address B&H if and when it arises, and ensuring that action is taken to address such misconduct in a meaningful way after proper investigation.
Richard B. Johnson is the co-founder and a partner at Ascent Employment Law in Vancouver.
