As of November 1, BC will have mandatory requirements for employers, workers and supervisors to address workplace bullying and harassment. The new WorkSafe BC Occupational Health & Safety bullying and harassment policies will be effective November 1, 2013 (the "OHS Policies"). All employers should be preparing and reviewing their policies.
This represents the second stage of significant developments addressing workplace bullying & harassment under WorkSafeBC's jurisdiction. The first stage, effective July 1, 2012, were amendments to the Workers Compensation Act that significantly expanded the scope of compensable mental disorder claims including those arising from bullying & harassment. Now, the OHS Policies approach bullying & harassment from the prevention side by treating bullying & harassment as a hazard just like any other workplace hazard.
Under the OHS Policies, employers in British Columbia will have a clear duty to "take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment". The Employer Duties Policy includes a number of requirements including that employers must develop a policy with respect to workplace bullying and harassment, implement procedures for the reporting and investigation of incidents, and provide training to employees and supervisors to recognize and respond to bullying & harassment.
The OHS Policies do not explain how employers should implement these requirements. Many employers will already have existing harassment and/or respectful workplace policies and procedures and will not have to make significant changes. However, these employers still need to confirm that existing policies are consistent with the OHS Policies and need to consider whether their existing policies could pose legal risks. One potential pitfall is having definitions that are too broad. The OHS Policies define a single term, "Bullying and Harassment" as conduct that:
- includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but
- excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.
Employers are not required to adopt this definition in their internal policies or to even have a definition of bullying & harassment in their policies. Employers should consider the following when developing or reviewing their policy:
- The OHS Policies definition allows for other behaviour to constitute bullying & harassment which provides the opportunity for employer to more closely define the behaviour.
- The OHS Policies make no distinction between "bullying" and "harassment" which are related concepts, but not the same.
- Consider definitions of bullying & harassment that contain certain limitations and exclusions. One example is the legitimate exercise of managerial/supervisorial direction of the workforce (ie. 'labour relations exception'). A potential concern with the OHS Employer Duties Policy is that the second part of the definition attempts to import a determination of whether an employer's actions are reasonable into an assessment of whether bullying & harassment occurred. Supervisors and managers should have some latitude to make decisions as long as they implement them in a manner that is not abusive, threatening, targeted or otherwise for improper motives. We recommend that employers do not simply adopt the definition contained in the OHS Policies.
- Importing the concept of "interpersonal conflict" from the Claims Policy so that interpersonal conflict is not harassment unless the behaviour is threatening or abusive. We also prefer definitions that treat bullying and harassment as normally a pattern of behaviour but indicate that single isolated incidents can constitute harassment if serious enough.
WorkSafeBC will be publishing a tool kit in early October to assist with establishing policies and procedures to combat workplace bullying & harassment. Having reviewed the draft tool kit we are concerned that it may not actually provide enough concrete guidance about how to operationalize the OHS Policy requirements. Further, the draft tool kit does not distinguish between large employers and small employers, nor does it address the special circumstances of certain industries, such as in the service sector where there is a potential of bullying & harassment arising from members of the public.
All employers should audit their existing policies and procedures for compliance and avoiding pitfalls inherent in this evolving area of the law. Our team is available to assist you.
WorkSafeBC resources in this area are available on its new webpage: http://www2.worksafebc.com/Topics/BullyingAndHarassment/Home.asp. Other information related to this topic can also be found at Marino's blog: www.workplacelegalpost.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.