June 2006 ISSUE
BACKGROUNDER
Workplace is No Place for Bullies: PART II
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Editor’s Note: Nancy Toth, MA, CHRP, Manager, Professional Development & Human Resources, contributed the introduction that begins below. The article that follows comes to us from the Canada Safety Council. This is the second story in a three-story series on bullying, which began last month.
Introduction
A recent issue of the Human Resources Advisor is titled Workplace Violence Intolerance
Increases. The article defines workplace violence as “the attempt or actual
exercise of force or power by one person against another with the intent of causing
harm, abuse or embarrassment. Violence is not limited to physical assault. It
can include: threatening gestures; verbal or written threats; swearing; insults;
expressing an intent to inflict hurt or harm; harassment; bullying; arguments;
stalking; property damage; vandalism; thefts; and psychological violence.”
Obviously, workplace bullying has become serious business — one that can no longer be swept under the proverbial carpet.
Later in the publication is the declaration that “it is clear that arbitrators and courts are becoming increasingly serious about holding employers responsible for hostile work environments and dangerous workplace incidents constituting workplace violence. In fact, recent decisions have clearly indicated to employers that they face the risk of liability where a victimized employee loses the capacity to earn a living due to the deterioration in mental health or suffers significantly as a result of the workplace violence the employee experiences.”
Continues the article: “Workplace violence is not limited to the traditional workplace. It can also occur at off-site locations such as conferences, seminars, trade shows and even social events related to work.” The article cautions the reader to “attend to detail and pay attention to any escalation in undesirable behaviour.”
The legal implications of workplace bullying have never been more clearly stated than now —Alberta, British Columbia, Saskatchewan and Prince Edward Island have created specific regulations to address the issue. Quebec has gone even further, as this month’s instalment explains.
Human rights legislation also encourages employers to address workplace violence and harassment. “Discrimination and harassment are a form of workplace violence and are recognized as such by human rights policy and guidelines across Canada. Harassment and violence are considered to create an intimidating, hostile or offensive working environment.”
The message to employers is clear: “The employer has an obligation under human rights legislation to provide employees with a work environment free of demeaning, humiliating, harassing comments and actions.” Under common law, in fact, the employer is held liable for acts of violence or harassment carried out by employees in a position of authority.
Furthermore, under the principle of “vicarious liability,” the employer is held responsible for acts committed by employees, or his or her agents, in the course of employment, as though the employer had committed them him or herself.
The HR Advisor cautions that “employers must ensure that employees experience
workplace environments and interactions that are consistent with their physical
and emotional well-being.”
I will end on a positive note with a last quotation from the article: “An
atmosphere of trust and understanding helps establish the foundation for a healthy
workplace environment, the environment itself being an instrumental part of conflict
resolution.”
In the third and final article in this PEGG series, we will outline the steps employers are expected to take to minimize and manage workplace violence.
It’s the Law
The first anti-bullying law in North America came into effect on June 1, 2004.
Quebec has amended its Labour Standards Act to deal with psychological harassment
in the workplace.
The new Quebec law defines psychological harassment 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 or physical integrity and that results in a harmful work environment for the employee.”
According to the Commission des normes du travail, surveys show up to one in 10 Quebec workers has been the subject of harmful bullying, intimidation or belittlement by a boss or co-worker. Officials emphasize that they want to prevent rather than prosecute. Systems are in place to settle most claims by negotiation.
A similar amendment has been proposed to the Canada Labour Code, which applies to all federal government employees. The Workplace Psychological Harassment Prevention Act would impose fines of up to $10,000 for hostile, inappropriate and unwanted conduct, verbal comments or gestures, as well as “any abuse of authority, including intimidation, threats, blackmail or coercion.”
When the June 2004 election was called, however, the federal bill died.
Case Law Addresses Issue
In April 1999, a bullied worker went on a shooting rampage at OC Transpo in Ottawa,
leaving five people dead. The coroner’s inquest into that tragedy recommended
that federal and provincial governments enact legislation to prevent workplace
violence, and that employers develop policies to address violence and harassment.
In January 2001, the Canada Safety Council urged jurisdictions across Canada to act on the recommendations of that inquest.
Whether or not other provinces and territories follow the lead of Quebec and the federal government, case law has started to address the issue. A recent Ontario Superior Court decision recognized that an employer owes a duty to its employees to provide a decent, civil and respectful workplace.
Over the past decade, workplace bullying has become an internationally recognized occupational health and safety issue. Prevention of bullying is one of the objectives in the European Commission’s strategy for health and safety at work.
Many European countries, including France, Germany, Italy, Sweden, Spain, the Netherlands and Norway, have introduced various regulatory responses to the problem. In the United Kingdom, Ireland and Australia, the courts currently address bullying under existing legislation.
In the United States, however, workplace bullying is not yet recognized by the legal system, although a few states have initiated bills.
The Business Side of Bullying
Quebec’s new legislation responds to concerns that poor workplace morale
is bad for business. The government wants to improve productivity and reduce
stress-related sick leave.
Indeed, the business case for a bully-free workplace is compelling. A 2003 survey of self-described bullying victims by the Workplace Bullying & Trauma Institute found
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Victims suffered stress effects such as severe anxiety (76 per cent), disrupted sleep (71 per cent), and post-traumatic stress disorder (39 per cent).
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In 70 per cent of cases, the bullying only stopped when the victim quit or was let go. In a further 17 per cent, the victim was transferred.
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The bully suffered consequences in only 13 per cent of cases.
Workplace bullies create a tremendous liability for the employer by causing stress-related health and safety problems and driving good employees out of the organization. Employee turnover and stress leave are costly.
Whether or not anti-bullying policies are required by law, they make good business sense. For example, the Australian state of Victoria estimates that in 2001-2002, businesses lost over $57 million due to workplace bullying.
Bullying, or general harassment, is far more common than sexual harassment or racial discrimination, both of which are illegal. Workplace policies already required to address those behaviours could be extended to cover bullying.
Government Must Take the Lead
A recent article in the Ivey Business Journal recommends that the employer should
establish a values-based policy, enforce it with credibility, put into place
restorative intervention, and support its commitment with education and training.
The European Agency for Safety and Health at Work also offers guidance to develop
an organizational culture with standards and values against bullying.
The Victorian Work Cover Authority, which manages Victoria’s workplace safety system, has launched a major educational campaign in response to workplace bullying. A booklet in 13 languages informs workers on their rights and how to deal with workplace bullying. As well, a guidance document advises employers on how to prevent bullying and violence at work.
Legislation is long overdue and badly needed. To start, a legal definition of bullying would help employers develop policies. However, rules and regulations alone will not solve the problem. An effective strategy must also include education, conflict resolution mechanisms, and a commitment from employers based on good business practice.
MORE INFO
Canadian Initiative on
Workplace Violence
Visit www.workplaceviolence.ca/prevent/bullying.html
Canada Safety Council
Visit www.safety-council.org