Employers now obligated to create policies, clear policy statement
Answer: As of Nov. 1, British Columbia will have mandatory requirements for employers, workers and supervisors to address workplace bullying and harassment. As a result, employers should be preparing and reviewing policies to make sure they adhere to the new WorkSafeBC occupational health and safety bullying and harassment requirements.
These new obligations represent the second stage of significant developments addressing workplace bullying and harassment under WorkSafeBC’s jurisdiction.
The first stage, which became effective on July 1, 2012, amended the Workers Compensation Act to expand the scope of compensable mental disorder claims, including those arising from bullying and harassment.
The new OHS policies look at bullying and harassment from a prevention perspective and consider bullying and harassment to be comparable to any other workplace hazard.
WorkSafeBC’s policy states that employers in British Columbia will have a clear duty to, "take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment."
Employer duties
Employers now have duties that include adhering to the following:
• Employers must develop a policy with respect to workplace bullying and harassment.
• Employers must implement procedures for the reporting and investigation of incidents.
• Employers must provide training to employees and supervisors so they recognize bullying and harassment and, in turn, know how to respond.
Existing policies may be fine — but they should be reviewed
Many employers will already have existing harassment and respectful workplace policies and procedures and will not have to make significant changes. However, these employers do need to confirm that existing policies are consistent with OHS policy requirements.
Employers must also consider whether their existing policies could pose legal risks. One potential pitfall is the inclusion of definitions that are overly broad.
WorkSafeBC OHS policies define "bullying and harassment" as a conduct that: "includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment."
Employers may adopt this definition in their internal policies but there is no requirement to adopt this definition or to even have a definition of bullying and harassment in their policies.
Employers should not simply adopt the definition contained in the WorkSafeBC OHS policies. Rather, employers should consider the following when developing or reviewing their own policy:
1. The WorkSafeBC definition allows for other behaviour to constitute bullying and harassment which provides the opportunity for employers to more closely define the behaviour.
2. The WorkSafeBC policies make no distinction between "bullying" and "harassment" — which are related concepts, but not the same.
3. Consider definitions of bullying and harassment that contain certain limitations and exclusions. One example is the legitimate exercise of managerial/supervisorial direction of the workforce ("labour relations" exception). However, a potential concern with the OHS Employer Duties Policy is the second part of the definition attempts to import a determination of whether an employer’s actions are reasonable into an assessment of whether bullying and harassment occurred. Supervisors and managers should have latitude to make decisions as long as they implement them in a manner that is not abusive, threatening, targeted or otherwise for improper motives.
4. Consider importing the concept of "interpersonal conflict" from WorkSafeBC’s Rehabilitation Services and Claims Manual so that interpersonal conflict does not constitute harassment unless the behaviour is threatening or abusive.
Definitions that treat bullying and harassment as a pattern of behaviour, but indicate single, isolated incidents can constitute harassment if very serious and harmful, are preferred.
WorkSafeBC published a tool kit in early October to assist with establishing policies and procedures to combat workplace bullying and harassment.
It can be accessed on their website at
www2.worksafebc.com/Topics/BullyingAndHarassment/Home.asp.
All employers should audit their existing policies and procedures for compliance and avoiding pitfalls inherent in this evolving area of the law.
Ryan Berger, Howard Ehrlich, Herbert Isherwood, Taryn Mackie, Marino Sveinson, Elizabeth Allan, Katie Cobban, Rochelle Pauls and Andrew Schafer are lawyers in Bull Housser’s Labour and Employment group in Vancouver. They can be reached at (604) 687-6575 or visit
www.bht.com.
