Courts have shown a willingness to punish employers that don’t take steps to deal with depression
An RCMP constable in British Columbia who endured years of harassment from her commanding officer was recently awarded $950,000 by the B.C. Supreme Court. The harassment left her in such a severe depression and fragile emotional state that she is unlikely to work ever again.
When workplace harassment goes unchecked, the costs to an organization, both socially and economically, can be significant. Many of the victims become emotionally abused to the point they take stress leave, resulting in a loss of productivity and increasing health benefit costs. Others may resign from their employment, but turn around and sue the company for not protecting them from the harassers. This can result in substantial legal costs. With the recent number of cases being brought by employees who believe they have suffered workplace psychological harassment in one form or another, employers should do everything they can to decrease their liability.
In cases of workplace harassment, the onus is on the employee to prove, on a balance of probabilities, the harassment has reached a poisonous level and continuing in the workplace is untenable. In such cases, the employee would claim he has been constructively dismissed as a result of the employer’s failure or unwillingness to address the problem.
Unfortunately, there’s no magic bullet employers can use to guarantee they won’t be faced with a workplace harassment claim. But there are steps employers can take to limit liability.
Employers should ensure management is properly educated on workplace harassment in any form, but particular attention should be paid to psychological harassment because it can be so devastating and hard to detect.
Training programs can help managers identify harassment and to understand exactly what to do when it comes to their attention. Policies should be developed or enhanced to clearly define the procedures in place for any employee who believes he is being harassed. Policies should include a comprehensive complaint procedure so the employee understands what he needs to do and what the company will do to investigate a claim. As part of that policy, employers may want to consider providing an employee assistance program (EAP).
EAPs can be used to provide professional, confidential counselling services to employees and their immediate families for work or life issues. They can also offer proactive programs to address life issues such as divorce, addictions and financial difficulty. EAP counselling is typically paid by the employer as part of employee health benefits. While an employee’s participation is always voluntary, employers can remind employees EAP services are available and clearly state that in the policy.
A duty to help employees
A look at case law shows employers have a duty to provide assistance to staff when required.
In Clare v. Canada (Attorney General), a 1993 decision, the Federal Court of Appeal addressed the issue of the employer’s response to an employee who made several requests for the EAP counsellor. The federal Department of Supply and Services, Michael Clare’s employer, had recommended that he be released from his employment on the basis of incompetence pursuant to s. 31 of the Public Service Employment Act.
Claire blamed his poor job performance on the fact he was temporarily incapacitated due to family problems and work-related stress.
Clare claimed he made several requests for assistance under the EAP and the employer failed to comply with his requests. (According to the court’s written decision, when Clare asked for counselling assistance he was advised to see the government’s public health nurse, who then erroneously told him there was no government program that provided such counselling. The nurse also told Clare his supervisor could make a special medical request. Clare made the request but was refused and no reasons were offered.)
The Federal Court of Appeal agreed with Clare and found there was a duty on the part of the employer to refer him to an EAP or its equivalent. The Federal Court of Appeal said:
“In my opinion, the ‘duty to refer’ as it is presently cast does not unduly intrude upon an employer’s rights. The duty is conditioned on there being a pre-existing ‘duty to warn,’ which in turn is restricted to longer term employees.”
Consequently, the court found there was an obligation on the part of the employer to refer the employee to an EAP.
In Cox v. Canadian National Railway, a 1988 ruling, the Nova Scotia Supreme Court Trial Division found that because the employer had discharged its duty to refer the employee to counselling for an alcohol addiction, as demonstrated by its repeated offers to the employee, the employer was entitled to summarily dismiss the employee.
In this case, although the plaintiff had worked for 31 years at the railway, the fact he failed to take advantage of the EAP program offered numerous times by the employer meant the railway was entitled to terminate him for cause.
A duty to accept help
As these cases illustrate, not only is it an employer’s duty to look out for the health and welfare of an employee but, correspondingly, it is an employee’s duty to accept the employer’s assistance. Referring an employee to an EAP, and taking the other steps outlined above, will be helpful in limiting the employer’s exposure to liability and in demonstrating its genuine concern about its employees.
Given the long-term costs of harassment for both the employee and employer, employers simply cannot afford not to put proper mechanisms in place to address workplace harassment.
For more information see:
•Clare v. Canada (Attorney General), 1993 CarswellNat 204, 100 D.L.R. (4th) 400 (Fed. C.A.)
•Cox v. Canadian National Railway, 1988 CarswellNS 131, 84 N.S.R. (2d) 271 (N.S. T.D.)
Natalie MacDonald is a partner with Grosman, Grosman and Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].
When workplace harassment goes unchecked, the costs to an organization, both socially and economically, can be significant. Many of the victims become emotionally abused to the point they take stress leave, resulting in a loss of productivity and increasing health benefit costs. Others may resign from their employment, but turn around and sue the company for not protecting them from the harassers. This can result in substantial legal costs. With the recent number of cases being brought by employees who believe they have suffered workplace psychological harassment in one form or another, employers should do everything they can to decrease their liability.
In cases of workplace harassment, the onus is on the employee to prove, on a balance of probabilities, the harassment has reached a poisonous level and continuing in the workplace is untenable. In such cases, the employee would claim he has been constructively dismissed as a result of the employer’s failure or unwillingness to address the problem.
Unfortunately, there’s no magic bullet employers can use to guarantee they won’t be faced with a workplace harassment claim. But there are steps employers can take to limit liability.
Employers should ensure management is properly educated on workplace harassment in any form, but particular attention should be paid to psychological harassment because it can be so devastating and hard to detect.
Training programs can help managers identify harassment and to understand exactly what to do when it comes to their attention. Policies should be developed or enhanced to clearly define the procedures in place for any employee who believes he is being harassed. Policies should include a comprehensive complaint procedure so the employee understands what he needs to do and what the company will do to investigate a claim. As part of that policy, employers may want to consider providing an employee assistance program (EAP).
EAPs can be used to provide professional, confidential counselling services to employees and their immediate families for work or life issues. They can also offer proactive programs to address life issues such as divorce, addictions and financial difficulty. EAP counselling is typically paid by the employer as part of employee health benefits. While an employee’s participation is always voluntary, employers can remind employees EAP services are available and clearly state that in the policy.
A duty to help employees
A look at case law shows employers have a duty to provide assistance to staff when required.
In Clare v. Canada (Attorney General), a 1993 decision, the Federal Court of Appeal addressed the issue of the employer’s response to an employee who made several requests for the EAP counsellor. The federal Department of Supply and Services, Michael Clare’s employer, had recommended that he be released from his employment on the basis of incompetence pursuant to s. 31 of the Public Service Employment Act.
Claire blamed his poor job performance on the fact he was temporarily incapacitated due to family problems and work-related stress.
Clare claimed he made several requests for assistance under the EAP and the employer failed to comply with his requests. (According to the court’s written decision, when Clare asked for counselling assistance he was advised to see the government’s public health nurse, who then erroneously told him there was no government program that provided such counselling. The nurse also told Clare his supervisor could make a special medical request. Clare made the request but was refused and no reasons were offered.)
The Federal Court of Appeal agreed with Clare and found there was a duty on the part of the employer to refer him to an EAP or its equivalent. The Federal Court of Appeal said:
“In my opinion, the ‘duty to refer’ as it is presently cast does not unduly intrude upon an employer’s rights. The duty is conditioned on there being a pre-existing ‘duty to warn,’ which in turn is restricted to longer term employees.”
Consequently, the court found there was an obligation on the part of the employer to refer the employee to an EAP.
In Cox v. Canadian National Railway, a 1988 ruling, the Nova Scotia Supreme Court Trial Division found that because the employer had discharged its duty to refer the employee to counselling for an alcohol addiction, as demonstrated by its repeated offers to the employee, the employer was entitled to summarily dismiss the employee.
In this case, although the plaintiff had worked for 31 years at the railway, the fact he failed to take advantage of the EAP program offered numerous times by the employer meant the railway was entitled to terminate him for cause.
A duty to accept help
As these cases illustrate, not only is it an employer’s duty to look out for the health and welfare of an employee but, correspondingly, it is an employee’s duty to accept the employer’s assistance. Referring an employee to an EAP, and taking the other steps outlined above, will be helpful in limiting the employer’s exposure to liability and in demonstrating its genuine concern about its employees.
Given the long-term costs of harassment for both the employee and employer, employers simply cannot afford not to put proper mechanisms in place to address workplace harassment.
For more information see:
•Clare v. Canada (Attorney General), 1993 CarswellNat 204, 100 D.L.R. (4th) 400 (Fed. C.A.)
•Cox v. Canadian National Railway, 1988 CarswellNS 131, 84 N.S.R. (2d) 271 (N.S. T.D.)
Natalie MacDonald is a partner with Grosman, Grosman and Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].
