Workplace Bullying and the Law
Quebec Legislation Against Psychological Harassment
OnJune 1, 2004,Quebecbecame the first North American jurisdiction to include protection against psychological harassment of employees in its Act respecting Labour Standards. Psychological harassment is defined as:
“Any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affect an employee’s dignity or psychological integrity and that results in a harmful work environment for the employee. A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.”
The Quebec Labour Standards Branch (Commission des normes du travail) has published a bulletin on psychological harassment at work. It lists a broad range of activities that could constitute a breach ofQuebec’s labour legislation, including:
Making rude, degrading or offensive remarks.
Making gestures that seek to intimidate, engaging in reprisals.
Discrediting the person: spreading rumours, ridicule, calling into question aspects of the person’s private life, shouting abuse or sexual harassment.
Belittling the person: forcing them to perform tasks that are below their station or professional skills.
Preventing the person from expressing his or her thoughts, e.g. yelling, threatening, constant interruption, and prohibiting the person from speaking to others.
Isolating or shunning the person by not talking to them, ignoring their presence, or isolating them from others.
Destabilizing the person by making fun of their beliefs, convictions, tastes or political choices.
As can be seen from the above list, theQuebeclegislation goes far beyond traditional legislative efforts to combat the problem of workplace harassment. Other jurisdictions have sought to respond to workplace harassment only where the harassment is based on certain specific grounds, such as race, sex, family status, marital status, religion, etc.
In Quebec Psychological Harassment
Section 81.18 of the Act defines psychological harassment as:
a vexatious conduct that manifests itself in forms such as hostile or unwanted behaviours, words, recurring actions that affect the employee’s dignity or their psychological or physical integrity, making the work place adverse to them.
Only one problematical conduct can also be considered psychological harassment if it affects the employee to that point and has a continuous adverse effect on them.
For a psychological harassment situation to be acknowledged, the 4 elements of the definition must be present. The vexatious conduct must:
- be repetitive or problematical
- be hostile or unwanted
- affect the person’s dignity or their psychological or physical integrity
- make the workplace adverse.
Quebec a province of Canada Legislation – Psychological harassment at work
For the purposes of this Act, “psychological harassment” means 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 single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.
2002, c. 80, s. 47. Sect. 81.19
Every employee has a right to a work environment free from psychological harassment.
Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.
2002, c. 80, s. 47.Sect. 81.20
The provisions of sections 81.18, 81.19, 123.7, 123.15 and 123.16, with the necessary modifications, are deemed to be an integral part of every collective agreement. An employee covered by such an agreement must exercise the recourses provided for in the agreement, insofar as any such recourse is available to employees under the agreement.
At any time before the case is taken under advisement, a joint application may be made by the parties to such an agreement to the Minister for the appointment of a person to act as a mediator.
The provisions referred to in the first paragraph are deemed to form part of the conditions of employment of every employee appointed under the Public Service Act (chapter F-3.1.1) who is not governed by a collective agreement. Such an employee must exercise the applicable recourse before the Commission de la fonction publique according to the rules of procedure established pursuant to that Act. The Commission de la fonction publique exercises for that purpose the powers provided for in sections 123.15 and 123.16 of this Act.
The third paragraph also applies to the members and officers of bodies.
2002, c. 80, s. 47. Recourse against psychological harassment
An employee who believes he has been the victim of psychological harassment may file a complaint in writing with the Commission. Such a complaint may also be filed by a non-profit organization dedicated to the defence of employees’ rights on behalf of one or more employees who consent thereto in writing.
2002, c. 80, s. 68. Sect. 123.7
Any complaint concerning psychological harassment must be filed within 90 days of the last incidence of the offending behaviour.
2002, c. 80, s. 68. Sect. 123.8
On receipt of a complaint, the Commission shall make an inquiry with due dispatch.
Sections 103 to 110 shall apply to the inquiry, with the necessary modifications.
2002, c. 80, s. 68. Sect. 123.9
If the Commission refuses to take action following a complaint, the employee or, if applicable, the organization with the employee’s written consent, may within 30 days of the Commission’s decision undersection 107 or 107.1, make a written request to the Commission for the referral of the complaint to the Commission des relations du travail.
2002, c. 80, s. 68. Sect. 123.10
The Commission may, at any time, during the inquiry and with the agreement of the parties, request the Minister to appoint a person to act as a mediator. The Commission may, at the request of the employee, assist and advise the employee during mediation.
2002, c. 80, s. 68. Sect. 123.11
If the employee is still bound to the employer by a contract of employment, the employee is deemed to be at work during mediation sessions.
2002, c. 80, s. 68. Sect. 123.12
At the end of the inquiry, if no settlement is reached between the parties and the Commission agrees to pursue the complaint, it shall refer the complaint without delay to the Commission des relations du travail.
2002, c. 80, s. 68. Sect. 123.13
The Commission des normes du travail may represent an employee in a proceeding under this division before the Commission des relations du travail.
2002, c. 80, s. 68. Sect. 123.14
The provisions of the Labour Code (chapter C-27) relating to the Commission des relations du travail, its commissioners, their decisions and the exercise of their jurisdiction, except sections 15 to 19, as well as section 100.12 of that Code apply, with the necessary modifications.
2002, c. 80, s. 68. Sect. 123.15
If the Commission des relations du travail considers that the employee has been the victim of psychological harassment and that the employer has failed to fulfil the obligations imposed on employers under section 81.19, it may render any decision it believes fair and reasonable, taking into account all the circumstances of the matter, including:
1. ordering the employer to reinstate the employee;
2. ordering the employer to pay the employee an indemnity up to a maximum equivalent to wages lost;
3. ordering the employer to take reasonable action to put a stop to the harassment;
4. ordering the employer to pay punitive and moral damages to the employee;
5. ordering the employer to pay the employee an indemnity for loss of employment;
6. ordering the employer to pay for the psychological support needed by the employee for a reasonable period of time determined by the Commission;
7. ordering the modification of the disciplinary record of the employee.
2002, c. 80, s. 68. Sect. 123.16
Paragraphs 2, 4 and 6 do not apply to a period during which the employee is suffering from an employment injury within the meaning of the Act respecting industrial accidents and occupational diseases (chapter A-3.001) that results from psychological harassment.
Where the Commission des relations du travail considers it probable that, pursuant to section 123.15, the psychological harassment entailed an employment injury for the employee, it shall reserve its decision with regard to paragraphs 2, 4 and 6.
2002, c. 80, s. 68.
What the Act says
The Act respecting labour standards contains provisions on psychological harassment at work that protect the majority of Québec workers, whether they are full or part time.
Although the Act does not apply to certain employees such as senior managerial personnel, a person who cares for others, an employee subject to the construction decree, a worker who is party to a contract (in certain situations) or a student trainee, the provisions concerning psychological harassment apply to them all the same.
What constitutes psychological harassment at work
Psychological harassment at work is vexatious behaviour (Vexatious behaviour is a conduct that is humiliating or abusive for the person who suffers it, that hurts them in their self-esteem and cause them substantial distress. It is a behaviour that exceeds what a reasonable person considers appropriate at work.) in the form of repeated conduct, verbal comments, actions or gestures:
- That are hostile or unwanted
- That affect the employee’s dignity or psychological or physical integrity
- That make the work environment harmful.
A single serious incidence (Serious incidence is by definition, harassment has a recurring characteristic, i.e. it is continuous in time. For only one problematical conduct to be acknowledged as psychological harassment, its adverse effect must extend. Isolated actions such as aggressions with extensive effect could thereupon be considered psychological harassment.) of such behaviour may constitute psychological harassment if it has the same consequences and if it produces a lasting harmful effect on the employee.
The definition of psychological harassment found in the Act respecting labour standards includes sexual harassment at work and harassment based on any one of the grounds listed in section 10 of the Charter of Human Rights and Freedoms: race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, handicap or the use of a means to palliate this handicap.
The many faces of harassment
Psychological harassment may occur at every level of the organizational hierarchy. It may manifest itself between colleagues, persons in a position of authority may harass subordinates and conversely, employees may harass their superiors. The parties involved may be individuals or a group of people. The presumed harasser may also come from outside the enterprise. In this case, the harasser may be a client, a user, a supplier or a visitor.
In addition to these key actors, there are the witnesses. The witnesses of a psychological harassment situation play an important role in perpetuating or putting a stop to this behaviour. Indeed, as a group, they can contribute to removing or maintaining the climate of fear and silence associated with a harassment situation. By giving their versions of the events during interventions, witnesses can make a significant difference between aggravating and resolving the situation.
To establish that the case actually involves psychological harassment, it is necessary to prove the presence of all of the elements of the definition:
- This behaviour is humiliating, offensive or abusive for the person on the receiving end. It injures the person’s self-esteem and causes him anguish. It exceeds what a reasonable person (reasonable person is a person well informed of all the circumstances and being in the same situation as that experienced by the employee who presents oneself as a victim of harassment, and who would also conclude that the conduct is vexatious) considers appropriate within the context of his work.
Repetitive in nature
- Considered on its own, a verbal comment, a gesture or behaviour may seem innocent. It is the accumulation or all of these behaviours which may become harassment.
- Verbal comments, gestures or behaviours that are hostile or unwanted
- The comments, gestures or behaviours in question must be considered hostile or unwanted. If they are sexual in nature, they could be considered harassment even if the victim did not clearly express his refusal.
Affect the person’s dignity or integrity
- Psychological harassment makes the work environment harmful for the victim. The harassed person may, for example, be isolated from his colleagues due to the hostile verbal comments, gestures or behaviours towards him or concerning him.
Harmful work environment
Provide a workplace free from psychological harassment
The employer is required to provide his employees with an environment that is free from psychological harassment. However, this is an obligation of means and not of results. In other words, the employer cannot guarantee that there will never be any psychological harassment in his enterprise, but he must:
· Prevent any psychological harassment situation through reasonable means
· Act to put a stop to any psychological harassment as soon as he is informed of it, by applying the appropriate measures, including the necessary sanctions.
Manage with a view to preventing & nbsp; psychological harassment
The employer must adopt management practices that make it possible to prevent psychological harassment situations. He must put in place, in his enterprise, a known and effective in-house procedure that will allow him to be informed of these situations and to inform all of his employees. This procedure must also make it possible to deal objectively and promptly with these situations when they arise, in order to put a stop to them.
In his preventive management practices, the employer must also take into account that the harasser may be someone outside his enterprise: customer, user, supplier, visitor. To be able to fulfill his obligations well, he also has the right to ask his employees to refrain from harassing their colleagues, their superiors, or people with whom they have dealings as part of their employment.
In small businesses
The employer must inform all of his personnel that he is firmly committed to preventing and to putting a stop to all psychological harassment at work and he will remind them of this fact regularly. The employer may do so by way of a written statement:
· given to all new employees at the time of hiring
· redistributed with pay sheets, by memorandum, by e-mail or during individual or group meetings
· posted in change rooms, the lunch room, the lounge.
· Note: If it is the employer who is the source of the harassment, he may be held responsible for his own behaviour.
In big businesses
The senior management of the business must make a tangible commitment to prevent and to put a stop to all psychological harassment at work. It must also clearly inform all employees of this commitment. In so doing, senior management will be putting in place conditions that promote the establishment of a prevention process. The commitment of senior management must be steadfast, known to all staff members and reiterated on a regular basis. This commitment must be part of the enterprise’s policy and give rise to tangible, credible and effective actions.
Note: The employer may be held responsible for the behaviour of his employees, both within the context of their work and as part of related activities and training.
Sections of the Act applicable to this standard
Whom should you contact?
When a psychological harassment situation arises in a workplace, the Commission des normes du travail invites the employee to resort, wherever possible, to the resource persons designated by his employer and to the mechanisms put in place in his organization.
If the situation cannot be resolved within the enterprise, the employee may exercise the recourse provided under the Act respecting labour standards.
The recourse in the case of psychological harassment at work must be exercised within a period of 90 days after the last incidence.
If, for example, the last incidence of psychological harassment occurred onDecember 11, 2007, the harassed person has untilMarch 10, 2008to file a complaint with the Commission des normes du travail.
What Employers Must Do
Previous decisions by arbitrators set out a few basic principles that can help an employer to manage its employees in these uncertain times. While no clear and extensive definition of psychological harassment can currently be given, an employer should follow these guidelines if discipline against an employee is required:
· Discipline must be administered in a way that will not subject the employee to humiliation, disrespect or contempt.
· Disciplinary measures should be designed to give notice to an employee that behaviour is not acceptable but also that he or she can remedy the situation by following certain rules or guidelines.
· An offer to provide training or guidance may demonstrate the good faith motives of the employer.
· An employer should not tolerate aggressive behaviour or derogatory comments by supervisors or managers.
· If employees in one department receive a disproportionate number of disciplinary measures, employers should be wary of supervision problems.
· A clear written policy on psychological harassment may help to deter some potential harassment “offenders”.
· Supervisors and management should be given training or refresher courses on acceptable methods of meeting and communicating with employees having problems.
· Beware of conflicts between co-workers. The employer must provide a work environment free of harassment and management must intervene where there are problems between co-workers.
· Employers should take time to fully assess a situation before subjecting an employee to drastic disciplinary measures. If an employee has not responded to previous measures, there may be underlying problems worth investigating.
· Problems involving employees who have recently returned from a leave of absence should be treated with caution. The productivity of these employees may be impaired by changes in work methods or tools while on leave. Additional training may be required.