In a recent decision, the Tribunal administratif du travail (the "Tribunal") concluded that the employer had breached its obligations with respect to psychological harassment by failing to take reasonable steps to prevent and stop the harassment of one of its employees by one of the employer's suppliers.
The facts
In July 2019, the employer purchased from a third party a branch where clients go to complete their kitchen renovation projects. At the beginning of August 2019, the employee was appointed manager of said branch. Her duties involved ensuring the smooth operation of the branch, which included contract follow-ups, sales and human resources.
In carrying out projects, the employee worked closely with the third-party company from which the employer bought the branch, which subsequently became a supplier for the projects in question.
The employee claimed that harassing behaviour on the part of the co-owner of the supplier began at the end of August and continued until November 2019, when the employee resigned.
Initially, although verbal exchanges were difficult, the
employee tried to keep the relationship professional. Considering
that things were not changing, she decided to communicate with the
supplier's co-owner by email or text message only.
The employee alleged that, at that point, she started receiving
text messages and emails that were intimidating and aggressive as
well as personal attacks.
Decision of the tribumal
A. Elements of psychological harassment are established.
What started with strained discussions quickly turned into text
messages and emails being sent that contained hostile, aggressive
and accusatory comments.
Yet, the hostile comments against the employee continued during
the second project, even going so far as to send a formal cease and
desist letter, which the Tribunal found was sent solely to
intimidate the employee.
In the Tribunal's opinion, the employee had proved, on a
balance of probabilities, that the vexatious behaviour had violated
her psychological integrity and resulted in a work environment that
was harmful for her.
B. The employer's passivity is sanctioned.
Given the contentious relationship, the employee's superior
communicated with the supplier and verbally advised it to stop
using an aggressive tone in its communications. The employee's
superior felt they were in a delicate situation. Feeling that they
were caught between a rock and a hard place – the
relationship with its supplier to meet clients' needs, on the
one hand, and labour relations on the other – the
employee's superior tried to respond diplomatically to calm
things down.
The employer recognized that the supplier's comments were out
of line and unacceptable, but argued that it had to abide by its
contractual obligations to its clients so their projects involving
the supplier would be successfully completed.
Although the Tribunal recognized the delicate situation in which
the employer found itself in, it maintained that the prevention of
psychological harassment does not lend itself to "half
measures". Attempting to play both sides of the fence, and
convinced that the employee was contributing to the conflict, the
employer remained passive, believing that the situation would
resolve itself when the contracts ended. The Tribunal therefore
found that the employer had breached its obligations and was
required to do more to protect its employee and put an end to the
harassment.
Takeway points
This decision is an important reminder of the importance of an employer's obligations with respect to harassment. First, the fact that the harassment was perpetrated by a supplier or client does not relieve the employer of its obligations, since the employer is responsible for providing its employees with a healthy work environment. Second, taking reasonable measures to put a stop to harassment when a situation is brought to its attention calls for concrete and proportionate actions in relation to the circumstances on the employer's part.
While these situations are particularly delicate for any business, contractual obligations and business relationships cannot justify passivity or half-hearted interventions when a situation involving harassment is brought to an employer's attention.
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.
