The "#MeToo" movement highlighted the age old human resources concern of sexual harassment and bullying in the workplace. As a consequence, many Alberta employers created policies to address these concerns. The media has focused on sexual harassment stories, but one of the long-term legal impacts of the "#MeToo" movement is the associated issue of addressing bullying in the workplace. Most employers are prepared to investigate taking a firm action on sexual harassment issues. In contrast, bullying can sometimes be dismissed as something less serious, requiring less attention, and with fewer resources allocated to investigate and remedy. Bullying is more prevalent than sexual harassment, bullying can be harder to investigate, and it can be more difficult to remedy.
The Government of Alberta, like other provinces, chose to statutorily regulate the employers' obligations and responses to workplace bullying, as a part of its overall response to harassment.
Occupational Health and Safety requirements
Amendments to Alberta's Occupational Health and Safety (OHS) legislation, as well as the approach to bullying in the workplace by the Alberta Workers Compensation Board, require careful scrutiny by employers. For instance, from June 2018 to March 2019, 773 complaints about workplace harassment (and violence) were lodged with Alberta OHS. An additional 17 OHS officers were hired last year to conduct inspections and to enforce OHS legislation, including bullying complaints. The message from this is that bullying can no longer be ignored.
Fundamental changes were made to Alberta's OHS legislation effective June 1, 2018. Compliance with the legislation has been required for approximately the last 20 months. Some employers have not yet fulfilled the statutory requirements. In light of greater public awareness of bullying, employee complaints, and government enforcement of OHS legislation, it is essential that Alberta employers take proactive steps regarding workplace bullying.
The OHS legislation identifies bullying as a form of workplace harassment. Harassment, and by inference, bullying, can be any single incident or repeated incidents that are objectionable or unwelcome conduct or comment by a person that knows or ought reasonably to know would cause offence or humiliation to the co-worker or adversely affect the co-worker's health and safety. Bullying can be by way of conduct and comments. Bullying does not include any reasonable conduct of an employer or supervisor related to the normal management of the workers or the workplace.
Because bullying triggers the requirements of managing workplace harassment, the OHS legislation requires employers to take a number of actions:
- identify and assess potential hazards and identify controls to minimize the hazards of bullying;
- establish a harassment prevention plan that includes policies addressing workplace bullying together with creating procedures that detail (a) reporting; (b) investigation; (c) documenting; and (d) informing outcome of investigation;
- provide worker training on workplace policies and procedures that form the harassment prevention plan;
- investigate and/or report on complaints related to bullying; and
- provide worker support.
The Alberta approach to workplace bullying is similar to other jurisdictions that have implemented legislative processes to address bullying in the workplace. From the employer perspective, what once was considered "bad behaviour", has now been elevated to a substantive legal right and obligation.
It is imperative that these legislative requirements are in place in the event of a complaint or audit being made to Alberta Occupational Health and Safety.
In light of these new legislative requirements, bullying takes on a whole new meaning. Employers are required to address such concerns by providing for a complaint process together with an investigation and if required, a resolution process.
Potential Workers Compensation Board issues
In addition to the occupational health and safety issues identified above, the Alberta Workers Compensation Board (WCB) has also stated that bullying can give rise to WCB claims.
Under Workers Compensation, the WCB can provide compensation coverage when the bullying or harassment leads the employee to develop a diagnosable injury or illness. These related diagnoses can include depression, anxiety, adjustment disorder, or in some cases, post-traumatic stress disorder. If the employee experiences at work have resulted in a diagnosable injury, then WCB can provide compensation coverage and help for treatment. The compensable claim is recorded against the employer's WCB account. When adjudicating a claim for bullying, the WCB will require corroborating information. Adjudicator's will request details of the allegation and available documentation, including emails, texts, etc., and will often request copies of employer investigation reports (which are required pursuant to occupational health and safety legislation), together with any interviews and statements from workers.
Other employer risks
Failure to address bullying issues, particularly if they develop into a toxic work environment, creates the potential for a constructive dismissal lawsuit. Seeking a litigated resolution to the problem comes with the closely connected increased potential risk for aggravated or punitive damages.
In addition to legislative and legal requirements, employers always risk trial before the "court of public opinion". In today's highly vigilant social media world, it does not take long for the employer's brand to be diminished in the eyes of the public and shareholders due to the perception (let alone, confirmation) of bullying in an employer's workplace.
When responding to bullying, the employer needs to be aware that there are multiple forums that an employee can use to seek to reddress a bullying complaint. In the past, an affected employee rarely dealt with the issue or when they did, they would informally raise the issue with their supervisor or human resources representative. In more serious cases, a constructive lawsuit or grievance (if unionized) might be filed.
In today's reality, OHS investigations, perhaps a human rights complaint (if the bullying is based on a prohibited ground) and even a Workers Compensation Claim are all additional concerns.
What does all of this mean?
In an era of increased legislative requirements, as well as heightened social awareness and social media attention, Alberta employers who choose to ignore workplace bullying complaints do so at their own risk.
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.