Laws are slowly broadening as guide to proper conduct
Background
Throughout the 1980s and 1990s, sexual harassment was the employment issue of the moment. In human resources circles, it seems that “workplace harassment” is quickly becoming the catch phrase of this decade.
The concept of “workplace harassment” has its origins in anti-discrimination legislation from 40 years ago. However, it has evolved tremendously in recent years and is constantly taking on broader meaning.
At present, the laws are in the process of morphing into guiding individuals with respect to how they should conduct themselves in the workplace.
The list of “unacceptable workplace behaviour” extends well beyond that contained in human rights legislation.
There have been some legislative inroads in this area. In addition, the courts are slowly developing a concept of workplace harassment through the principle of a “poisoned work environment” and the common law concept of constructive dismissal. These will be discussed later in this article.
Employers need to be well-informed on this developing area of the law. There are many pro-active measures that an employer can take to insulate itself and protect its employees from “workplace harassment.”
What is workplace harassment?
Workplace harassment covers a wide range of behaviour and can manifest itself in many ways. Workplace harassment is generally defined as any behaviour that demeans, embarrasses, humiliates, annoys or abuses a person and that is known or reasonably expected to be unwelcome. The behaviour may or may not violate human rights legislation.
The behaviour will violate human rights legislation where the target employee is discriminated against or harassed on the basis he is a member of a protected group.
Human rights violations include racial harassment and sexual harassment. Most employers are aware of their responsibilities to prevent and protect employees from these violations.
But what many employers do not know is that they are obligated to prevent a broader scope of offensive behaviour, commonly known as bullying.
This may include gestures, comments, intimidations or other inappropriate and offensive activities.
A person does not need to have been touched or threatened to have been harassed. The harassment can be purely “psychological” in nature.
If a reasonable person ought to have known the insulting or intimidating behaviour was unwelcome, it constitutes harassment.
Bullying is always intentional conduct and it is the result of cumulative conduct. It is the persistent use of offensive behaviour which gradually undermines a person’s self-esteem and self-confidence.
The courts and human rights tribunals have coined the term “hostile (or poisoned) work environment” to describe the resulting environment.
It is important to note workplace harassment can be executed at the hands of a supervisor or by one co-worker over another. It can even be executed by a subordinate towards a supervisor.
Legislative initiatives
Supporters of anti-bullying legislation argue employment tribunals hear cases of bullying every day but are doing so in a framework of law that compels them to ask the wrong questions and produces unsatisfactory outcomes.
An employee who faces bullying is forced to quit his job in order to bring a claim of constructive dismissal. Supporters of legislation argue employees should have their problems solved without the need for such drastic measures and, further, that remedies and complaint mechanisms need to be put in place.
In Canada, the only province to make inroads in this area is Quebec. It has recently overhauled its Labour Standards Act and has banned all “psychological harassment” in the workplace.
This amendment will take effect on June 1, 2004.
The provision provides that employees shall have the right to work in an environment free from “psychological harassment” which is defined as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.”
A complainant will have the right to file a formal complaint within 90 days to the applicable statutory body. The complaint will be investigated by the statutory body and an appropriate remedy determined.
Where it is determined that an employer did not act appropriately, it could be subject to a range of penalties.
Although it is felt that the amendment to the Labour Standards Act will have a very positive impact on the workplace culture in Quebec, critics of the legislation warn that use of the word “psychological” will take on a whole new mental health realm which may not have been intended by the amendment.
In all other provinces, protection against harassment falls to the applicable human rights commissions.
Where the behaviour does not relate to a protected ground, an individual’s only recourse is through the courts, unless the employer has been pro-active in establishing an internal mechanism for dealing with workplace harassment.
This in-depth look at workplace harassment was provided by Barry Kuretzky, a senior partner with Kuretzky, Vassos LLP in Toronto, practicing exclusively in the field of employment and labour law. He can be reached at (416) 865-0504 or [email protected].
Throughout the 1980s and 1990s, sexual harassment was the employment issue of the moment. In human resources circles, it seems that “workplace harassment” is quickly becoming the catch phrase of this decade.
The concept of “workplace harassment” has its origins in anti-discrimination legislation from 40 years ago. However, it has evolved tremendously in recent years and is constantly taking on broader meaning.
At present, the laws are in the process of morphing into guiding individuals with respect to how they should conduct themselves in the workplace.
The list of “unacceptable workplace behaviour” extends well beyond that contained in human rights legislation.
There have been some legislative inroads in this area. In addition, the courts are slowly developing a concept of workplace harassment through the principle of a “poisoned work environment” and the common law concept of constructive dismissal. These will be discussed later in this article.
Employers need to be well-informed on this developing area of the law. There are many pro-active measures that an employer can take to insulate itself and protect its employees from “workplace harassment.”
What is workplace harassment?
Workplace harassment covers a wide range of behaviour and can manifest itself in many ways. Workplace harassment is generally defined as any behaviour that demeans, embarrasses, humiliates, annoys or abuses a person and that is known or reasonably expected to be unwelcome. The behaviour may or may not violate human rights legislation.
The behaviour will violate human rights legislation where the target employee is discriminated against or harassed on the basis he is a member of a protected group.
Human rights violations include racial harassment and sexual harassment. Most employers are aware of their responsibilities to prevent and protect employees from these violations.
But what many employers do not know is that they are obligated to prevent a broader scope of offensive behaviour, commonly known as bullying.
This may include gestures, comments, intimidations or other inappropriate and offensive activities.
A person does not need to have been touched or threatened to have been harassed. The harassment can be purely “psychological” in nature.
If a reasonable person ought to have known the insulting or intimidating behaviour was unwelcome, it constitutes harassment.
Bullying is always intentional conduct and it is the result of cumulative conduct. It is the persistent use of offensive behaviour which gradually undermines a person’s self-esteem and self-confidence.
The courts and human rights tribunals have coined the term “hostile (or poisoned) work environment” to describe the resulting environment.
It is important to note workplace harassment can be executed at the hands of a supervisor or by one co-worker over another. It can even be executed by a subordinate towards a supervisor.
Legislative initiatives
Supporters of anti-bullying legislation argue employment tribunals hear cases of bullying every day but are doing so in a framework of law that compels them to ask the wrong questions and produces unsatisfactory outcomes.
An employee who faces bullying is forced to quit his job in order to bring a claim of constructive dismissal. Supporters of legislation argue employees should have their problems solved without the need for such drastic measures and, further, that remedies and complaint mechanisms need to be put in place.
In Canada, the only province to make inroads in this area is Quebec. It has recently overhauled its Labour Standards Act and has banned all “psychological harassment” in the workplace.
This amendment will take effect on June 1, 2004.
The provision provides that employees shall have the right to work in an environment free from “psychological harassment” which is defined as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.”
A complainant will have the right to file a formal complaint within 90 days to the applicable statutory body. The complaint will be investigated by the statutory body and an appropriate remedy determined.
Where it is determined that an employer did not act appropriately, it could be subject to a range of penalties.
Although it is felt that the amendment to the Labour Standards Act will have a very positive impact on the workplace culture in Quebec, critics of the legislation warn that use of the word “psychological” will take on a whole new mental health realm which may not have been intended by the amendment.
In all other provinces, protection against harassment falls to the applicable human rights commissions.
Where the behaviour does not relate to a protected ground, an individual’s only recourse is through the courts, unless the employer has been pro-active in establishing an internal mechanism for dealing with workplace harassment.
This in-depth look at workplace harassment was provided by Barry Kuretzky, a senior partner with Kuretzky, Vassos LLP in Toronto, practicing exclusively in the field of employment and labour law. He can be reached at (416) 865-0504 or [email protected].
| Recent Ontario cases highlight direction courts are taking A few recent decisions in Ontario highlight the direction courts are taking with respect to workplace harassment. In Shah v. Xerox Canada Ltd., the Ontario Court of Appeal determined that Viren Shah had been constructively dismissed as a result of his manager’s actions. Shah’s manager subjected him to unsubstantiated performance concerns, critical performance reviews, an unjustified warning letter that was short on specifics and an unjustified probationary period. The court determined that Shah’s position had become intolerable. In Saunders v. Chateau des Charmes Wines Ltd., the Ontario Superior Court of Justice determined Lawrence Saunders was not treated with “civility, decency, respect and dignity.” The court determined his boss was hostile, aggressive, profane, rude, demeaning and intimidating. His management style was punctuated with anger and profanities. It was determined that the treatment Saunders received at the hands of his boss had the effect of amounting to a repudiation of the employment contract. Similarly, in Stamos v. Annuity & Marketing Services Ltd., the Ontario Superior Court of Justice determined Sophia Stamos was subjected to treatment that made the performance of her work impossible and her continued employment intolerable. The environment was poisoned by the presence of a co-worker who subjected Stamos to verbal harassment and threatening and intimidating tactics. The court determined an employer has a broader responsibility to ensure the work environment does not become hostile, embarrassing or forbidding. It is interesting to note that this latter case involved the conduct of a co-worker rather than that of a supervisor. For more information see: • Stamos v. Annuity Research & Marketing Services Ltd., 2002 CarswellOnt 1600, 18 C.C.E.L. (3d) 117 (Ont. S.C.) • Saunders v. Chateau Des Charmes Wines Ltd., 2002 CarswellOnt 3395, 20 C.C.E.L. (3d) 220 (Ont. S.C.J.) •Shah v. Xerox Canada Ltd., 2000 CarswellOnt 831, 49 C.C.E.L. (2d) 166 (Ont. C.A.) |
| Tips for employers on preventing workplace harassment Developing a workplace prevention strategy makes good business sense for employers. Combining preventive strategies with complaint and investigation practices that are intended to respond to issues of harassment in a responsible and effective manner can be a significant deterrent to workplace harassment. In an effort to prevent workplace harassment, employers should analyze their entire employment systems. This means starting with an analysis of the pre-employment stage and ending with the post-employment stage. Careful recruiting Employers should implement recruitment guidelines that will minimize the risk of hiring individuals who are either harassers or who have the propensity to become harassers in the workplace. The resumes of job applicants should be carefully screened. It is recommended that questions be directed to applicants as to why they left previous employment and the answers should be considered critically. In addition, employers can utilize testing methods which can outline an applicant’s personality profile and identify potential problems. Orientation All new employees should be required to participate in an orientation program which establishes the expectations of the employer with regard to interpersonal communications. It should also introduce new employees to the employer’s harassment policy. Performance evaluations Supervisors should be trained to identify behaviours among employees that could be cause for alarm. Supervisors should be trained in the identification of harassment as well as the handling of issues of harassment. Supervisors should also be trained in performance management in order to limit the supervisor’s exposure to complaints of harassment. As most of the case law relates to the conduct of supervisors, a consistent and constructive approach to performance management is an important step in limiting these complaints. Employee surveys An employer may survey its workforce to identify potential problems of harassment. Issues which can be canvassed include assessing employee morale, rating level of job stress, identifying incidents of harassment and rating relationships with supervisors and co-workers. Workplace audit Senior management and human resources personnel can watch for signs of workplace harassment. By monitoring attendance records, morale and productivity as well as observing signs of undue stress, employers may be able to identify potential problems of workplace harassment. Exit interviews Exit interviews can be helpful in identifying incidents of workplace harassment. Departing employees (whether through voluntary or involuntary departures) should be queried about their level of job satisfaction and things they would like to improve about the workplace. Development of harassment policy The development of a harassment policy (coupled with appropriate staff training) is probably the most significant step that an employer can take in the prevention of workplace harassment. Most employers have sexual harassment policies. However, it is important that employers now broaden these policies to include a prohibition on all forms of workplace harassment. In addition to defining harassment, the policy should provide a mechanism for receiving, investigating and resolving complaints of workplace harassment. When faced with a harassment complaint, it is imperative that an employer follow its established protocol. The policy should have the result of reducing complaints through education and increasing the awareness as well as improving morale and productivity in the workplace. In addition, the policy will serve to bring issues of harassment to management’s attention at an earlier stage so that they may be resolved more quickly, at a lower cost and with fewer negative consequences. Implementing these preventive methods should help to lessen an employer’s incidence of workplace harassment. Although no prevention system is foolproof, a careful approach to handling and investigating a harassment complaint should help to limit an employer’s exposure. |
