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Since the inclusion of a specific provision concerning
psychological harassment in Quebec employment law, there has been a
significant increase in litigation involving psychological
harassment.
The Québec's Act Respecting Labour
Standards1 defines psychological harassment as:
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.
Vexatious behaviour: A single serious incidence of such
behaviour that has a lasting harmful effect on an employee may also
constitute psychological harassment.
This is an important factor to consider when addressing
performance issues, as increased monitoring of an employee's
work can be misconstrued by an employee as harassment.
A recent decision from Québec's Labour Relations
Commission, Michaud v. Allstate du Canada2,
shows how corrective measures can be misinterpreted by an employee
as harassment. The employee's job involved frequent phone calls
with clients and the employer would monitor an average of two calls
per month for each of the employees in that position. However, as
the plaintiff's performance deteriorated, the employer began
monitoring more calls, up to eight per month. Simultaneously, the
plaintiff's supervisor also called her more, even sometimes
several times a day, to discuss her performance. At a certain
point, the plaintiff alleged that her health had begun to
deteriorate. She took a leave of absence and never returned to
work.
The plaintiff alleged that these measures constituted harassment
because the additional oversight, evaluations and multiple phone
calls were excessive. Moreover, she claimed that the evaluations
did not reflect her true performance and that she was not given
tools to improve. Finally, she claimed that the employer called her
frequently once she was away on a leave of absence, which added to
her stress.
It was decided in this case that there was no psychological
harassment, despite the fact that the plaintiff's work
environment contributed to the deterioration of her psychological
health. The commissioner found several contradictions in the
plaintiff's testimony and decided that the measures taken by
the employer were a legitimate exercise of its right to manage its
business. The employee had clear performance issues that she failed
to correct. The employer acted appropriately in increasing the
amount of supervision and the number of evaluations and giving the
employee specific examples of her poor performance. The employer
had also offered to allow the plaintiff to select which calls would
be monitored, but she had refused. Finally, the commissioner found
that the employer's phone calls while to the employee was on
leave were made only to ascertain her condition and expected date
of return.
While the employer was ultimately not found to have harassed the
plaintiff, in order to mitigate disputes and liability in this type
of situation, the following best practices should be kept in
mind:
Have procedures in place that dictate how poor work performance
will be addressed, especially if additional monitoring is one of
the remedial measures used;
Cite the objective measures of performance when imposing
additional oversight on an underperforming employee;
Give concrete examples of poor performance that justify
additional supervision and that the employee can work to improve;
and
Ensure that there is a legitimate managerial reason that is
expressly provided for additional oversight or more frequent
employee evaluations.
Footnotes
1 Loi sur les normes du travail, LRQ, c
N-1.1
2 Michaud v Compagnie d'assurance Allstate du
Canada, 2012 QCCRT 0193
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