Employers, management, employees all have obligations to prevent misbehaviour
In a previous article, I outlined the importance of a concerted approach to workplace bullying and harassment (B&H), as well as the legal and the business cases for proactively addressing it.
While prevention is key, we also need to be prepared to address B&H if and when it takes place in our workplaces.
In British Columbia, part of the mandate on employers under the Workers Compensation Act (the Act) and the Occupational Health and Safety Regulation (the Regulation) is prevention. However, employers are also obliged to investigate and address B&H if and when it takes place in the workplace. In fact, owners, employers, supervisors and employees all have dovetailing obligations to prevent B&H and, essentially, to report and mitigate the impacts of B&H in the workplace when it arises. This is also the case in terms of workplace discrimination contrary to the BC Human Rights Code.
In this article, I will focus on how we can respond to B&H if and when it comes up.
The policy
First, it is critical (and legally mandated) that all BC employers have a B&H policy. This has been a longstanding requirement from WorkSafeBC since 2013. These policies go by many names, such as a “Respectful Workplace Policy,” but they need to specifically address B&H in the workplace in order to meet the legal requirements.
The policy will define the prohibited conduct, each workers’ obligations and rights not to be exposed to or engage in B&H, and empower each individual take action if they observe or experience B&H.
Next, in order to properly address B&H in the workplace, all employees throughout all levels of the organization need to understand and be trained on the B&H policy.
Therefore, it is critical that everyone in the organization is aware of, understands, and is trained on the policy - in fact, training and an annual review of the policy are legal requirements under the Act and Regulation).
See something, say something
Once employees understand the B&H policy and are trained on it, they need to be given organizational support and guidance on how the policy applies in the everyday workplace.
It is important that we equip all employees with tools to address B&H which are practical and effective, and don’t unnecessarily escalate every issue to a formal complaint. Employees need to understand that they are allowed (and need to) speak up when they experience or see B&H unfolding, including support to say something in the moment if safety permits.
Therefore, those experiencing B&H or observing it should be trained in a culture that embraces candor and supports those who call out inappropriate conduct without retaliation or backlash for doing so.
In my experience, the healthiest organizations are those in which each team member feels empowered to speak up and where they feel that they own and are accountable to the greater corporate culture.
Employers must comply with their workplace policies following a bullying report so everybody knows what’s expected of them, says a lawyer.
Mediation
Raising issues in the moment can be effective. However, I am not so naïve as to expect that doing so will take care of all B&H issues. Therefore, we need to provide our people with tools to be employed if matters need to escalate. Mediation is one such tool.
Mediation is an effective approach that many employers will use to address B&H if one-on-one conversations do not resolve the issue and a third party needs to become involved.
In many cases, it can be useful to offer the help of a supervisor, manager or HR professional inside the organization to mediate a potential B&H issue before it becomes a formal concern. This approach can help to flesh out disagreements - intentional or otherwise - and help build consensus and adherence with the B&H policy.
This process, while sometimes time-consuming, can be incredibly useful to circumvent larger and more expensive issues and show the organization’s commitment to B&H prevention.
A 2014 study found that nearly half of Canadian workers feel they have been bullied at work.
Formal complaints
While it is important to have a stepwise progression to escalate responses to potential B&H in the workplace, it is critical - and legally mandated - that you have a formal complaint process set out in your policy.
The process should outline:
- How a complaint is made (in writing, detailing who was involved, what allegedly happened and when, and whether there were any witnesses).
- Who the complaint should be provided to (including a work-around in case the usual recipient of complaints is the alleged bully and/or harasser).
- That complaints will be investigated fairly and without bias or presumptions.
- That the process is confidential.
- That there is to be no retaliation for bringing forward complaints in good faith.
- That an outcome summary will be provided to the parties involved.
It is not legally necessary to refer all workplace B&H complaints to an outside third-party investigator. Complaints can be dealt with “in-house” if preferred. However, depending on the allegations and the internal resources available to deal with the issue, an outside investigator can be very useful.
Regardless, once you receive a B&H complaint, it is important that both sides (the complainant(s) and the respondent(s)) have an opportunity to address the issues and tell their stories.
Also, fairness and natural justice principles require that the alleged perpetrator be provided an opportunity to sufficiently respond to the allegations against them in the course of the investigation.
Once all of the evidence is collected, it is to be weighed and assessed in relation to the legislation and policy, and considered on a balance of probabilities – for example, if on the evidence it is 51 per cent more likely that B&H occurred than not, then the complaint is substantiated.
If B&H is ultimately found to have occurred, it is absolutely critical that there be consequences in keeping with the policy. Depending on the severity of the issues, discipline can range from training on the policy, discrimination, or B&H itself, as well as a disciplinary warning or perhaps dismissal for just cause in the most severe instances.
After all, justice needs to be done but also seen to be done!
The virtual environment can be prone to toxicity for remote workers, says a lawyer.
In a nutshell
While prevention is the best policy, it is important that we support and equip our employees to be entitled to speak up if they witness or experience B&H at work. However, if that is not effective, then staff should be provided guidance and tools to escalate issues up through third party mediative support or ultimately through a formal complaint process.
When a formal complaint needs to be made, process and fairness are critical and help to ensure that legal liability is avoided or minimized. Moreso, it telegraphs the importance of the issue for everyone in the organization.
At the end of the day, the time and effort to enact and follow proper policy and processes is not minimal. However, it may very well be some of the best use of your resources to build culture and support for your team!
Richard B. Johnson is a partner and co-founder of Ascent Employment Law in Vancouver.
