The legal case against bullying in the workplace

In April 1999, Pierre Lebrun, an employee of OC Transpo in Ottawa, went on a shooting spree that ended with five deaths, including his own by suicide. Lebrun had been subjected to incessant bullying and ridicule by his colleagues for his speech impediment and facial tick.

At the coroner’s inquest the jury made 77 recommendations about preventing and responding to workplace violence. One recommendation was a request for federal and provincial legislation to combat violence, including physical and psychological violence from co-workers.

The jury paid particular attention to psychological violence, which it defined as “bullying, mobbing, teasing, ridicule or any other act or words that could psychologically hurt or isolate a person in the workplace.” They expressed the need for greater recognition of the effect of verbal abuse on victims. They also stressed that the issue should be viewed from a preventative standpoint and not just seen as a criminal activity that is dealt with after the fact.

Historically, bullying has gone unchecked. It is often dismissed as a personality conflict, an attitude problem on the part of the employee or a strong or aggressive management style. At other times the bully (who can be quite adept at charming senior management) simply alleges that the victim is incompetent or insubordinate and senior management accepts this characterization without question.

The effects of bullying have also not always been acknowledged. If a supervisor repeatedly kicked or hit an employee the supervisor would be disciplined or fired. But psychological abuse can be just as damaging to an individual’s mental and physical health and yet it is still largely tolerated.

Legal cases over bullying have made their way to the courts, and there are a number of scenarios that could develop.

Harassment under Ontario’s Human Rights Code
For behaviours that fall within the protected grounds of discrimination under Ontario’s Human Rights Code such as race, religion, sex, family status, sexual preference and so on, employees can seek assistance from the Ontario Human Rights Commission. However, if the bullying behaviour is not related to a protected ground, the code does not apply.

This is often a difficult concept for employees to grasp. They believe they are entitled to protection against harassment, whether or not it is discriminatory in its origin.

Constructive dismissal
Bullying can constitute constructive dismissal.

In Shah v. Xerox Canada, the Ontario Court of Appeal considered a situation in which an employee had been subject to “inefficient and unreasonable conduct” by his manager. In holding that this type of behaviour could give rise to a claim of constructive dismissal the court said:

“In some cases…the employer’s conduct amounts not just to a change in a specific term of the employment contract but to repudiation of the entire employment relationship...Xerox’s treatment of Shah…demonstrated that it no longer intended to be bound by the employment contract, and that it had, therefore constructively dismissed Shah.” ((2000) 49 C.C.E.L. (2d) 166.)

In the earlier decision of Paitich v. Clarke Institute of Psychiatry, the Court of Appeal looked at the effect of bullying in the context of a wrongful dismissal action in which the employer asserted that it had just cause to fire the employee.

Paitich had a satisfactory work record until Hucker was appointed as Paitich’s new manager. Before Hucker even started working at Toronto’s Clarke Institute, he had some pre-existing ideas about Paitich’s performance and was predisposed to be critical of him. From the outset Hucker acted in a demeaning and sarcastic way and brought Paitich’s integrity into question without cause.

Paitich became increasingly frustrated by Hucker’s actions and brought a harassment complaint before the organization’s grievance committee. The committee viewed its role very narrowly and dismissed the complaint.

This only exacerbated Paitich’s frustration and, in response, he became increasingly hostile and wrote a series of inappropriate and critical memos. The employer asked him to withdraw the memos and when he refused, they fired him and alleged just cause. Paitich brought an action for wrongful dismissal.

At trial, the judge concluded that the actions by Hucker had been so dreadful that Paitich could have considered himself constructively dismissed months before the employer terminated him. The trial judge found in favour of Paitich and stated that: “…supervisory staff owe a duty to those working under their authority to treat them fairly and not subject them to individual harassment that renders competent performance of their work impossible.” (Supra, (1988), 19 C.C.E.L. 105 (Ont. H.C.).)

In upholding the trial judge’s decision, the Court of Appeal stated that it would be unfair to allow the employer to rely on Paitich’s actions in support of its claim of just cause in light of the “extremely reprehensible behaviour of the administration of the Clarke Institute.” ((1990), 30 C.C.E.L. 235.)

Intentional infliction of nervous shock
To succeed in a claim for intentional infliction of nervous shock an employee would have to prove:
•outrageous conduct by the perpetrator;
•conduct calculated to produce some effect of the kind that was produced (intent); and
•conduct producing actual harm that is a visible and provable illness.

Outrageous conduct — The most difficult element of this type of claim is proving that the conduct is “outrageous.” This is a very high test and the kinds of activities that fall under this category have generally been quite limited. This may be changing.

For many years sexual harassment was tolerated in the workplace and many incidents considered outrageous today were, in the past, trivialized or simply accepted as an unfortunate consequence of men and women working together. Likewise, society is becoming less accepting of bullying and psychological abuse.

The conduct is more likely to be considered outrageous if the bully is in a position of authority over the victim.

It is also more likely to be considered outrageous if the bully exploits a victim who is particularly sensitive or vulnerable to injury through mental distress. In Boothman v. Canada, in finding the employer liable for intentional infliction of nervous shock, the court noted: “…when Mr. Stalinski (the plaintiff’s manager) hired the plaintiff, he was well aware of her mental vulnerability. In my view, Mr. Stalinski did not hire plaintiff (sic) despite that vulnerability as he professed, but because of it. He was looking to hire an employee who would readily submit to his control and plaintiff, because of her apparent fragile state was a fitting candidate. He exploited that vulnerability from the onset, initially to assert his control and domination over the plaintiff and later, when that failed, with the view of causing her to break down and quit her job.” ((1993) 3 F.C. 381 (T.D.).)

Conduct calculated to produce some effect of the kind that was produced — This is about intention. Given the nature of these cases, the courts have frequently imputed an intention to produce nervous shock even if the bully’s actions caused greater harm than the bully anticipated. That’s because bullies generally do not anticipate or appreciate the extent of the harm caused by their actions.

Conduct producing actual harm that is a visible and provable illness — The kind of harm required goes beyond mere upset feelings. It must result in objective and substantially harmful physical or psychological consequences. Many victims of bullying do sustain these kinds of injuries, from which it can take years to recover.

A claim of intentional infliction of nervous shock has succeeded in several cases. In Prinzo v. Baycrest Centre for Geriatric Care, an employee was subject to a barrage of phone calls while off sick and was accused of harming the clients she served as a hairdresser in a geriatric facility. The actions by her supervisor and other employees of the facility were deliberate and resulted in emotional upset, increased blood pressure, weight gain and an increase in the employee’s diabetes symptoms. The court considered this a separate head of damages in her wrongful dismissal action and awarded her $15,000 plus $5,000 in punitive damages. ((2000) O.J. No. 683, (Ont. SCJ).)

Similarly in Boothman v. Canada, the employee was awarded damages for intentional infliction of nervous shock. Her supervisor subjected her to numerous and continuous acts of assault and intimidation. She was granted $5,000 for pain and suffering and $20,000 for lost earnings. In addition, the court awarded $10,000 in exemplary damages based on its finding that the defendant deliberately exposed Boothman to risk without justification.

In Bogden v. Purolator Courier Ltd., in which a claim of nervous shock was upheld, the court described the defendant’s management style as “confrontational, brash, in your face, and filled with sarcastic responses to the plaintiff and those for whom the plaintiff was responsible”. Purolator was ordered to pay Bogden $20,000 for nervous shock. ((1996) A.J. No. 289 (QB).)

In each of the above cases, the employer was held vicariously liable for the bully’s intentional infliction of nervous shock on the victim.

Negligence
To succeed in a claim based on negligence, an employee would need to show:
•the employer owed a duty of care;
•the employer breached the standard of care;
•damage resulted from the breach; and
•the damage was foreseeable and not too remote.

In Clark v. Canada, the plaintiff, an RCMP officer, sued for negligent and intentional infliction of nervous shock. She had been harassed by her male colleagues and suffered a mental crisis as a result. Her superiors failed to come to her assistance.

In reviewing Clark’s claim for negligence, the court said: “I am satisfied that the evidence also established negligence that engages the Crown’s vicarious liability. In my view there is no doubt that as the plaintiff’s immediate supervisor, Cpl. Mazur owed the plaintiff a duty of care and breached that duty consistently. I find that over a lengthy period, he deliberately refused to exercise his authority to put an end to the conduct of harassment of which he was well aware and which he in fact participated in on occasion, thus condoning that behaviour. He further neglected utterly to respond to the plaintiff’s distress signals, as his position of responsibility required him to do. And, as mentioned earlier, superior RCMP officers failed to come to the plaintiff’s assistance.

“In my view, the circumstances of this case present no issue of remoteness or foreseeability. Cpl. Mazur was not an unconcerned bystander without authority to exert control over the behaviour of his subordinate: his negligence played a direct causative role in the damage suffered by the plaintiff, and he was clearly acting in the course of his employment.”

The court awarded Clark $88,000 in special damages for lost earnings and $5,000 in general damages for nervous shock. ((1994), 20 C.C.E.L. (2d) 172 (Fed. Ct.).)

Duty to accommodate
For some employees, the bullying is so extreme that it results in both physical and mental illnesses. These illnesses would most likely be considered handicaps under the human rights legislation. This would trigger an employer’s duty to accommodate a worker short of undue hardship. Accommodation might include a transfer away from the bully or modified duties to allow him to cope with the effects of his illnesses.

Health and safety
In some provinces, such as British Columbia, health and safety regulations explicitly cover threatening and abusive behaviour from co-workers. In Ontario, the situation is not quite as clear.

Employees have argued that harassment constitutes an occupational health and safety hazard and have attempted to seek redress under Ontario’s Occupational Health and Safety Act. While the door has been opened to these types of claims, they have been met with some reluctance.

In Au v. Lyndhurst Hospital, although the Ontario Labour Relations Board (OLRB) did not decide the issue, it speculated that since harassment can be damaging to an employee’s health it could be a health and safety hazard. However, the OLRB suggested that this issue might be more properly addressed under human rights laws. ((1996) OLRB Rep. May/June 456.)

In the subsequent decision of Meridian Magnesium Products Limited, the OLRB stated that where the harassment is discriminatory and the employee has a remedy under the Human Rights Code, the matter should be deferred to the Human Rights Commission. (([1996) OLRB Rep. Nov./Dec. 964.)

In Sharon Moore v Barmaid’s Arms, the OLRB held that a worker in a tavern was entitled to refuse to work where the “hazard” was an abusive customer. Board member Correll dissented, in part because he believed that a violent customer could not be a hazard in the sense intended by the act. ((1995) OLRB Rep. March 229.)

Ontario Public Service Employees’ Union (Re) involved a supervisor in a correctional facility who behaved abusively towards a correctional officer in front of the inmates the officer guarded. The adjudicator considered whether “the act could be applied to a situation where the source of the alleged threat to a worker’s health and safety is another employee at the workplace.” The adjudicator stated that if the behaviour constituted assault then the criminal process is preferable but acknowledged that there might be situations involving the violent behaviour of a co-worker in which the act would apply. She did not provide guidance as to what these situations might be. ((1996) O.O.H.S.A.D. No.53.)

An employee can seek protection under Ontario’s Occupational Health and Safety Act and could refuse to work with a co-worker if he has reason to believe that doing so is likely to endanger him. This would trigger an investigation by management along with a worker health and safety committee member, or worker representative if there is no committee. During the investigation management and the committee member or representative would be responsible to determine whether the situation is truly unsafe. If the parties don’t agree or the worker disagrees with their conclusion, the test becomes whether the worker has reasonable grounds to believe that the work is unsafe. This may involve the appointment of an inspector from the Ministry of Labour.

Defamation
Statements made by a supervisor alleging that a staff member is incompetent would most likely have the effect of lowering the esteem or respect that his co-workers and any direct reports have for him. This would certainly allow the targeted employee to assert that he was defamed by the comments and would provide a separate claim to add to any other actions.

What’s an employer to do?
Due diligence is an important step for employers. They must take bullying seriously and not brush it off as a personality conflict or aggressive management style.

The first step is to create a workable policy. Many employers have either incorporated bullying into their existing harassment policies or have created separate code of conduct policies. There are good reasons for each approach.

The harassment policy is the one most employees think of when faced with this type of problem. That is, they don’t make a distinction between racially motivated harassment and plain ordinary bullying. The underlying cause does not matter, it’s the effect that concerns them.

On the other hand, in Ontario for example, discriminatory harassment is something that is treated in a specific manner under human rights legislation and the legal tests may not be exactly the same. For example, the test for discriminatory harassment includes determining whether the harasser “knew or ought to have known that the conduct or comments were unwelcome.” This element is included because there are times when certain comments or conduct may be considered harassment by one individual and humorous by another. The same is not likely true of bullying. For this reason, using a code of conduct policy may be a better approach and it may provide the employer with greater flexibility in managing the problem. If the employer takes this approach it will need to emphasize that both policies are equally important.

Of course any policy is useless if it is not enforced. Supervisors will need to be adequately trained in effective leadership that teaches them that yelling at, and humiliating employees tend not to be effective approaches. They should also be taught about the legal consequences of inappropriate behaviour.

If an employer receives a complaint of bullying, it should fully document the incident(s). This includes obtaining written, dated statements from the victim and anyone who can corroborate the victim’s allegations. The perpetrator should be given an opportunity to respond and proper notes should be taken. Depending on the outcome of the investigation, the perpetrator should be disciplined or possibly terminated. At all times the employer will need to meet its obligations to both the victim and the perpetrator and must maintain a proper paper trail.
Employees are tired of being abused and more is now known about the effects of psychological abuse on an individual’s emotional and physical health. Therefore, there will be increasing pressure on employers, courts and government agencies to adopt strategies to prevent bullying and provide an effective response when it occurs.

Lauren M. Bernardi is a lawyer and human resource advisor with the firm of Bernardi Stewart Scholz. She is the author of Powerful Employment Policies and the Recruitment Workbook and Disk. She may be reached at (905) 274-2305, [email protected] or on the Web at www.bestlaw.ca.

SIDEBARS

What is bullying?

Workplace bullies are really just grown up versions of the schoolyard bully. In an effort to overcome their own insecurities, bullies attempt to dominate and control their victims. They often have poor or non-existent social skills and lack empathy for others.

Broadly defined, bullying is any behaviour that intimidates, humiliates or demeans a person. Sometimes it’s directed at one employee in particular; other times it’s part of a hostile or poisoned work environment.

Examples of bullying behaviour can range from quite subtle to blatant and include:
•persistent, excessive and unjustified criticism and constant scrutiny;
•spreading malicious rumours;
•excluding or ignoring the victim;
•undermining the victim’s efforts by setting impossible goals and deadlines;
•sabotaging the employee’s work;
•impeding an employee’s efforts at promotions or transfers;
•making false allegations in memos or other company documents;
•verbally abusive behaviour such as yelling, insults and name calling; and
•physically abusive or aggressive behaviour such as pushing, hitting, finger pointing or standing close to the victim in an aggressive manner.

Effects of bullying
Bullying has pretty much the same impact on victims as racial, sexual or other forms of discriminatory harassment. Victims of bullying may:
•blame themselves and doubt their self-worth;
•be seen as weaker or less competent by their co-workers;
•be less productive;
•suffer from stress-related illnesses, including headaches, inability to concentrate, sleeping and eating disorders, depression, muscle pain and panic attacks;
•be at greater risk of alcoholism or suicide;
•feel the effects in their home lives as the stress is carried over; or
•be fired, miss out on promotions, or quit their jobs without having a new job in place.

For an employer, allowing bullying behaviour in the workplace can lead to higher turnover and absenteeism, decreased morale, losses in productivity and legal costs incurred to defend against claims.

Facts and figures

Bullying is a common occurrence in North American workplaces.

The United States-based Campaign Against Workplace Bullying (www.bullybusters.org) reports:
•bullying is more common than racial or sexual harassment;
•one in five employees have been the victims of bullying;
•women are targeted more often than men but they are equally as likely to be the bullies; and
•the vast majority (81 per cent) of bullies are in supervisory roles while 14 per cent are at the same level as their targets.

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