‘We didn’t mean any harm’

Quebec’s new psychological harassment law and its implications for employers

The recently enacted provisions of Quebec’s Labour Standards Act dealing with psychological harassment will become a reality in Quebec effective June 1, 2004.

The Quebec government has legislated and built into the law a protection for employees who have been the object of psychological harassment in the workplace. The key word here is “workplace” as opposed to “employer,” as will be explained further on.

Interestingly enough the acts of commission, or omission for that matter, which may give rise to a complaint may be overt or subtle, verbal or written, direct or indirect, accusatory or by way of insinuation. It may stem from events which are employer driven or co-worker to co-worker.

In addition the litmus test may not be, as many would think, similar in nature to that of constructive dismissal. The acts do not necessarily require an ulterior motive of trying to get rid of an unwanted employee but may in themselves be sufficient to declare the employer culpable.

Psychological harassment entails a destructive process — a series of unwanted contacts, actions, gestures, comments and the like, which are hostile in nature and whose systematic repetitiveness by one or several individuals would lead one to conclude the result caused harm to the dignity or psychological or physical integrity of the employee. The end result is a harmful environment for the employee.

Such conduct may be in a form so as to be intimidating, threatening, insulting, humiliating and degrading. A perfect example is someone who is the object of constant and unrelenting public criticism.

Other examples may include:

•refusal to allow an employee to express herself;

•isolating an employee;

•discrediting an employee’s work (as opposed to constructive criticism);

•badgering an employee;

•yelling or raising your voice either in private or public; and

•humiliating an employee.

The dimensions of the problem may be broken down as follows:

•Are the acts repetitive in nature?

•Are they such that they will, by their very nature, be seen as negative, devastating and destructive on the person who is the object of these acts?

•Most importantly, the defining aspect is centred on the effect it has on the employee in question (psychologically or physically) and not by the intentions of the person doing the harassing. That’s what makes it different from the concept of constructive dismissal.

The complaint of the employee, filed before the Labour Standards Commission, may be judged not only on the convergence of actions (or for that matter non-action) which when added up and taken in context of a timeline would constitute psychological harassment, but on an isolated event or single incidence as well which may cause a similar effect.

The harassment may be by an individual or a group, and may be employer or co-worker driven. In either case, the employer may be held accountable if, notwithstanding having knowledge of the incidents, complained of either deliberately or through incompetent insensitiveness and lack of leadership, the company does nothing to address the issue and thus contributes to a harmful work environment.

What should employers do?

What should employers with staff in Quebec do? It’s not a perfect world and, as in the case of sexual harassment, what one may feel is an innocent act may and often is perceived and taken by another to be harmful. The act also requires employees to take “reasonable action” to prevent psychological harassment and to put a stop to it when it occurs.

Some steps to take and things to watch out for:

•Develop a general harassment policy which covers a multiple of subjects, be they racial, religious, sexual or psychological, and insert short concrete examples for demonstrative purposes so as to leave no doubt to the reader.

•Be ever vigilant of things that you feel may be “brewing” and deal with them in a timely fashion.

•Advise management staff of their role and reporting requirements.

•Criticism should be constructive and not destructive. Employees, wherever possible, should be dealt with privately and not on the shop floor.

•Reprimands should be given where deemed appropriate and should be well documented. Evaluations should be held at least semi-annually so employees know where they stand.

•Interpersonal conflicts must be nipped in the bud.

Consequences of a complaint

Should the Labour Relations Commission come to the conclusion an employee has been the victim of psychological harassment or has failed to prevent psychological harassment, it may order the employer to do a number of things.

It can order the employer to reinstate the employee, pay damages to the employee, undergo management retraining, pay a compensatory indemnity, order the employer to pay for costs incurred by the employee for psychological counselling, a written letter of apology or order an employer to modify the disciplinary record of an employee, together with interest on the award and either total or partial reimbursement of legal fees.

Take note that any decision rendered is not subject to any appeal process.

So as stated, to be forewarned is to be foretold. Employers need to be aware that anger and temperament management is now the rule.

Joel Weitzman is an employment lawyer with Dunton Rainville in Montreal. He can be reached at (514) 866-6743.

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