This article was originally published in Blakes Bulletin on Labour & Employment-November 2004
Most employers are well aware of their obligations to protect employees from sexual harassment and infringement of other human rights in the workplace. In Québec, the decision has been made to broaden the scope of the protection with a prohibition against psychological harassment-a first in any North American jurisdiction. As of June 1, 2004, the Québec government proclaimed new psychological harassment provisions of its labour standards law to be in force. Employers have raised many questions as to how the new provisions should be interpreted and the extent of their potential liability.
The Contentious Provisions
The cause of the recent turmoil lies in three sections of the province's amended labour standards law (Act). First, section 81.18 defines what constitutes psychological harassment. It is, however, rather vague: 81.18 - For the purpose 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.
Second, section 81.19 sets out the obligations imposed upon employers: 81.19 - Every employee has a right to work in an environment free from psychological harassment. Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, put a stop to it.
Third, section 81.20 integrates these new legal provisions into every existing collective agreement and provides an exception to the general principle that all disputes arising under a collective agreement be dealt with exclusively by arbitration. A second paragraph enables parties to jointly bypass the arbitration process and deal with a psychological harassment complaint through mediation.
The Act also provides a specific complaint mechanism for cases of alleged psychological harassment for employees not covered by a bargaining certificate in sections 123.6 to 123.16. An employee who believes he or she has been subjected to psychological harassment may file a complaint in writing with the Commission des normes du travail (Commission). The complaint can also be filed by an association of employees or another non-profit organization if the employee has consented to this in writing. It must be filed within 90 days of the last incidence of the offending behaviour.
After conducting an inquiry, the Commission may refer the complaint to another government body, the Commission des relations du travail (CRT), if no settlement is reached and if it agrees to pursue the complaint. If the Commission refuses to pursue the complaint, the complainant can request in writing that the complaint be referred to the CRT.
After a hearing has been conducted, the CRT must render a decision, ordering one or more of the following remedies if it finds that the employee has been a victim of psychological harassment and the employer has failed to fulfil its obligations. It may, among other things, order the employer to:
- Reinstate the employee
- Pay the employee an indemnity up to a maximum equivalent to wages lost
- Take reasonable action to put a stop to the harassment
- Pay punitive and moral damages to the employee
- Pay the employee an indemnity for loss of employment
- Pay for the psychological support needed by the employee for a reasonable period of time determined by the Commission
- Modify the disciplinary record of the employee.
What is Psychological Harassment?
As noted, the definition in the Act is vague and many employers are concerned about its potential scope. Since the provisions came into force, there has been no jurisprudence from the CRT. The concept of harassment, however, is integrated into many collective agreements and numerous decisions regarding harassment have been rendered by arbitrators over the years.
While past decisions dealing with various types of harassment are not binding on the CRT, they are a useful guide to what may be considered acceptable behaviour in the workplace. That said, most previous decisions involve extensive reviews of evidence adduced at the arbitration hearings and therefore a determination of what constitutes harassment can be highly subjective.
Among the Québec decisions that offer potential guiding principles is Société industrielle de décolletage et d'outillage Ltée v. Le Syndicat national de Sido Ltée de Granby. In that case, it was alleged that Mr. Benoit, President and General Director, was harassing or discriminating against Mr. DeGrandpré, an employee in the bargaining unit who had been hired as a machine operator and had completed three years of service when he filed his 1996 grievance. DeGrandpré claimed Benoit was harassing him by telling him that he was not performing his job adequately, was good for nothing and insinuating that he would not be able to sweep the floor of the plant without tripping over. Benoit also added that DeGrandpré should consider finding other employment because if he were to try to make a complaint, he would be "destroyed."
The arbitrator's decision referred to compelling evidence of humiliating comments, bad jokes and a spiteful attitude on behalf of Benoit. The arbitrator acknowledged that an employer is responsible for ensuring that standards of quality applicable within the enterprise are complied with and respected, and can discipline an employee who does not perform according to those standards. However, the arbitrator also held that, even though Benoit might have had good reasons for taking action against DeGrandpré, his general attitude was not acceptable.
According to the arbitrator, there are different ways to direct a workplace, impose discipline and provide training. None, though, should include lack of respect or humiliation of employees. According to witnesses, DeGrandpré was subjected to the contempt of co-workers who watched him sweeping the floor or cleaning up the work premises instead of working as a machine operator. The arbitrator concluded that the employer had treated the plaintiff without any consideration, which amounted to harassment.
In another Québec case, Municipalité de S… and Syndicat canadien de la fonction publique, there were allegations of physical and verbal harassment, unacceptable comments and gross misconduct. After hearing the evidence, the arbitrator concluded that a representative of the employer was swearing regularly in the workplace, particularly when talking to employees. The employer's representative also threatened an employee, telling her he could force her to wash toilet bowls if he wanted. The arbitrator concluded that the employee was afraid of this person and avoided being left alone with him. The arbitrator found that there was harassment and unacceptable behaviour in the workplace.
Finally, in the decision of Union des routiers, brasseries, liqueurs douces et ouvriers de diverses industries, section locale 1999 and Brasserie Labatt Ltée, we find a very interesting discussion of psychological harassment. The arbitrator provided an extensive analysis of the different definitions of harassment that have been developed by the Commission des droits de la personne du Québec (the province's Human Rights Commission) and other arbitrators.
The arbitrator referred to a broad definition of psychological harassment that includes unacceptable and offensive behaviour, comments or behaviours that will humiliate or embarrass an employee, and attitudes that create a hostile work environment.
He also cited expert opinions referring to an abusive use of authority, and a desire to diminish an employee or hinder his or her professional development. The arbitrator indicated that there is a fine line between a legitimate disciplinary intervention and psychological harassment. A legitimate intervention is characterized by a real effort to provide the employee with an opportunity to amend his or her behaviour. Psychological harassment, on the other hand, does not create an environment that enables an employee to meet the employer's expectations.
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.
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.