On June 1, 2004, the Québec legislature
amended the Act respecting labour standards to prohibit
psychological harassment. Since then, company managers have
been wary of exercising their managerial rights, for fear of
being accused of psychological harassment. Much of this
wariness stems from a lack of clear guidance as to what exactly
constitutes psychological harassment. Because of the delays
inherent in the judicial process, only a few decisions on
psychological harassment were rendered before 2007. However,
now that three years have elapsed since the legislation was
amended, we can identify certain elements that can be used to
distinguish psychological harassment from an
employer’s managerial rights.
Definition of Psychological Harassment
Psychological harassment is defined in the Act 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." The
Act also states that "a single serious incidence
of such behaviour that has a lasting harmful effect on an
employee may also constitute psychological
In a recent press release, the Commission des normes du
travail noted that 97 per cent of psychological harassment
complaints were settled during the Commission’s
complaint processing procedure. Consequently, very few
complaints were referred to the Commission des relations du
travail for a formal hearing.
Although few complaints reach the hearing stage, employers
must devote significant time and resources to handling most
complaints. For example, employers may need to:
accommodate a visit by the Commission des normes du
meet with various employees involved in the complaint;
engage in conciliation meetings with the complainant to
try to resolve the conflict.
Employers who have experienced this process can confirm that
these complaints are often complex. It may take a great deal of
time and skill for a good work environment to be restored
within an organization after such a complaint has been
Managerial Rights versus Psychological Harassment
As indicated above, some employers have been concerned that
the normal exercise of their managerial rights may lead to
claims of psychological harassment. Case law has now made it
clear that employers do have the right to manage their
businesses, subject to some limitations:
The management power of the employer has not disappeared
with the coming into force of the provision on psychological
harassment. It must be exercised according to clearly defined
rules. But when properly exercised, it cannot be described as
Similarly, from another decision:
The Commission considers that the facts in this matter occur
in a context of administrative follow-up. The employer, having
detected certain shortcomings in the complainant, undertook a
process intended not only to point out these shortcomings to
the employee but also to provide the support necessary to
correct them. In doing so, the employer is exercising his
Thus, it is clear that the provisions regarding
psychological harassment do not trump managerial rights.
However, the new provisions do put some limitations on these
rights. Understanding these limitations will help employers
limit the risk of complaints and improve their work
Lessons for Employers
Based on existing case law, here are some tips on how to
prevent the exercise of managerial rights from turning into
complaints of psychological harassment:
When criticizing an employee’s performance,
provide the support necessary to correct the
Make sure the way you act toward an employee who engages
in an employment infraction does not differ significantly
from how you act toward other employees who engage in similar
When handling performance issues, simply require the
employee to provide the same work performance as expected
from other employees.
When commenting on performance, ensure your comments are
legitimate and respectful. Do not make comments in a
disdainful way that humiliates the employee.
Make managers aware of what is and is not permissible, as
they are the main targets of psychological harassment
complaints. Training managers is an investment that will reap
many benefits in labour relations, productivity and other
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.
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