The good fight against workplace bullies

Of the many workplace issues faced by employers in Canada, workplace psychological harassment and bullying is becoming increasingly prominent and in turn, recognized in employment law.

Courts across the country are actively acknowledging the impact that workplace harassment can have on an employee’s physical and mental well-being — not to mention their workplace productivity — and delivering rulings designed to compensate employees for psychological injuries. This is a major departure from decades past, when a touch of bullying was considered a veritable rite of passage in the corporate world. A boss picking on an employee was not only acceptable, but a part of life. Many bullied employees would eventually mete out similar treatment to colleagues and their direct reports.

Further spiking the incidence of this misconduct is the prevalence of cyberbullying, which can extend well beyond the workplace. Cyberbullying is just as insidious in its reach and impact, and with email and social media, far easier to carry out. Cyberbullying policy enforcement, on the other hand, poses a far greater challenge for time-pressed and resource-limited employers. As a result, many incidents of online psychological harassment go unnoticed by employers struggling to manage and grow their businesses, let alone monitor their employees’ electronic communications both inside and outside the workplace.

Despite the increasing awareness of harassment and bullying in the workplace, the incidence of psychological abuse is still substantial. According to a 2012 survey by Ipsos Reid of more than 6,600 employees, 70 per cent of Canadian employees report some concern related to psychological health and safety. The toll of this kind of harassment has on employees and employers cannot be underestimated. As the Canadian Centre for Occupational Health and Safety notes on its website, victims of workplace psychological harassment can experience a range of debilitating health effects, including anger, feelings of frustration, inability to sleep, stomach pains, headaches, inability to concentrate, and low morale and productivity — and these can only hurt the employer’s bottom line.

In addition to the health problems for employees, psychological harassment can negatively affect an organization’s performance. For example, a study by the Mental Health Commission of Canada indicated that lost productivity related to absenteeism, presenteeism and employee turnover costs employers $6.3 billion each year. These costs include expenses related to stress-related illnesses, short and long-term disability claims, use of Employer Assisted Plans, human rights violations, health and safety breaches and low employee morale.

One recent case law development demonstrates the trend of recognizing the effects of psychological harassment and bullying on employees, as one tribunal expanded entitlement to workers’ compensation benefits for mental stress. In April 2014, Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) declared ss. 13(4) and (5) of the Ontario Workplace Safety and Insurance Act relating to mental stress to be unconstitutional and refused to apply the provisions.

The legislation distinguishes physical from psychological injuries, and ss. 13(4) and (5) disqualify employees from making workers’ compensation claims for mental stress, except where employees suffer from traumatic mental stress, that is caused by "an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of… employment." As such, entitlement would only be granted where there is a "sudden" or "traumatic" event, and would be denied for mental stress caused over a period of time by ongoing circumstances.

These provisions were considered by the WSIAT in a case involving an Ontario nurse who faced psychological harassment and bullying from a doctor for whom she worked for 12 years. The nurse was regularly embarrassed in front of her peers and patients, and was required to communicate with the doctor only through written notes, among other demeaning abuses. When the nurse raised her concerns to a team leader, she faced effective demotion with a reduction in responsibilities, although her job title went unchanged. She would soon develop a psychological injury that included anxiety and depression, and was unable to work.

The nurse’s subsequent workers’ compensation claim was denied because her mental stress was not "an acute reaction to a sudden and unexpected traumatic event" as per the legislation’s criteria for receiving benefits relating to mental stress. As a result, the nurse challenged the decision in an appeal to the WSIAT arguing her equality rights had been violated under the Canadian Charter of Rights and Freedoms. The WSIAT ruled the Worker’s Safety and Insurance Board’s criteria unconstitutional on the grounds that psychological injuries can occur over time and needn’t be "sudden and unexpected." The WSIAT declined to apply this provision, and granted the nurse entitlement to benefits for mental stress.

The repercussions from the ruling remain to be seen — WSIAT decisions are only binding on parties to the appeal — but its direction could shape formal policy or lead to legislative changes across Ontario and other provinces in the years ahead. It appears this approach to entitlement for mental stress has already gained a fraction as it has recently been followed by the WSIAT in Decision No. 1945/10, to grant a worker entitlement to benefits for mental stress.

In tandem with legal developments, there has been a growing body of guidelines and policies encouraging employers to create psychologically safe workplaces. One such guideline is the Canadian Standards Association’s "National Standard for Psychological Health and Safety in the Workplace" (CSA standards), which proposes establishing and maintaining a psychological health and safety management system for the workplace. This includes the identification and elimination of workplace hazards that pose a psychological risk, an assessment and control of workplace hazards, implementing practices that support a psychologically safe workplace, and creating a workplace culture that promotes psychological health and safety. While these are voluntary standards, employers should note that the CSA standards build on existing employer obligations under the Occupational Health and Safety Act. Specifically, an employer is required to take every precaution reasonable to protect employees, to inform employees of potential workplace hazards, and to identify, eliminate or reduce workplace risks.

Employers are increasingly recognizing the potential impact of bullying and psychological harassment on employee engagement, employer brand and bottom-line performance. Also, in accordance with legislative requirements, employers are implementing comprehensive workplace violence and harassment policies, which can be effective tools to address psychological harassment. But as we’ve witnessed in our daily interactions with organizations ranging in size from Fortune 500 companies to small and medium-sized businesses, harassment in all forms remains an ongoing threat to employee health and safety, and to the success of the organizations that employ them.

With this in mind, here are four strategies employers can follow to help mitigate much of the risk posed by psychological harassment and bullying in the workplace:

A comprehensive employee policy manual should include a code of conduct, which clearly defines acceptable behaviour in all realms — including the physical workplace and online with email and social media. A policy manual’s anti-bullying measures should include:

• A zero-tolerance commitment statement from the organization’s leadership team

• Clauses outlining the policy’s applicability to management, employees, clients, and other third-party vendors

• A clear definition of workplace bullying and examples of unacceptable behaviour

• A clear process for employees to follow when reporting incidents

• A clear outline of the organization’s workplace investigation process

• An outline of steps the organization will follow to take corrective action when a bullying incident is confirmed

• A commitment to confidentiality and discretion

• A no-reprisal and non-retaliation statement

Provide management training.

This is a glaring oversight for so many organizations that may be inclined to reward employees with promotion to managerial roles, but without properly assessing managerial competency or providing adequate management training. To avoid ongoing exposure to lawsuits or human rights complaints, any comprehensive management training program needs to cover psychological harassment and bullying. Managers should be coached on everything from identifying bullying to managing complaints, then dealing with these often difficult situations in a way that ensures legislative compliance and minimizes the impact on employee productivity as well as workplace environment and culture.

As I’ve noted in past articles, allegations of harassment must be properly investigated and documented. If not, an organization could face lawsuits, human rights or Ministry of Labour complaints. If a company lacks an HR team or staff member with investigation experience, management should be prepared to outsource the task to a third party, such as an experienced employment lawyer. When conducted properly, the process should take time, will involve internal interviews to conduct fact-finding relating to the allegations, will provide the responding party with an opportunity to respond to allegations, and will include a thorough review of all information collected over the course of the investigation process. The parties should also be allowed to respond to any allegations made against them.

Focus on cultural fit during the hiring process. The best way to avoid hiring bullies is to ensure an employer’s recruitment process involves some combination of psychometric testing, attitudinal assessment and a staged interview process. Many companies focus solely on skills or operational matches, but cultural fit should be a major focus of the process. There are times, however, when even the most comprehensive recruitment process fails to weed out potential bullies. In those cases, management should consider terminating the employment relationship with confirmed offenders. Employees who psychologically harass or bully their colleagues are a toxic workplace presence. The longer they’re allowed to linger, the greater the risk and negative impact on workplace culture and employee engagement.

Decision No. 1945/10, 2015 CarswellOnt 1801 (Ont. W.S.I.A.T.).