How Canadian Employers Address Bullying and Harassment

 

By Catherine Skrzypinski July 23, 2019
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​In light of the #MeToo movement, Canadian workplaces are taking steps to protect workers from bullying, harassment and other types of misconduct on the job.

Workplace bullying involves verbal comments that could mentally hurt or isolate a person at work, and may even involve physical contact, according to the Canadian Centre for Occupational Health and Safety. Canada's Policy on Harassment Prevention and Resolution defines harassment as improper conduct that is directed at and offensive to another person in the workplace—including at any event or location related to work.

More than half of Canadians say they have experienced bullying at work, according to the results of a November 2018 survey by polling firm Forum Research. The phone survey of almost 1,900 Canadians showed that 55 percent of them reported bullying to management, senior staff, human resources, or another person or department responsible for employee conduct.

The survey also found that only 1 in 3 Canadian employers took action to address the bullying.

"Employers are required to take the safety of their employees seriously and adequately respond to incidents of violence and harassment, but not every employer does," wrote Lisa Stam, founder of SpringLaw in Toronto, in a blog post. "When an employer has received a complaint, [it] should be aware of [its] obligations."

Workplace bullying and harassment can have far-reaching impacts on worker health and safety, leading to absenteeism, lower productivity, anxiety and depression, reported the Workers' Compensation Board of British Columbia, or WorkSafeBC.

What British Columbia Employers Can Do

To date, British Columbia is the only Canadian province that has developed policies specifically addressing workplace bullying.

WorkSafeBC has developed occupational health and safety policies to ensure that employers in British Columbia take all reasonable steps to prevent or minimize workplace bullying and harassment. These steps include the following:

  • Draft a policy statement that workplace bullying and harassment are not acceptable. Then distribute the statement to workers.
  • Create ways workers can report incidents or complaints of bullying and harassment.
  • Figure out how HR or supervisors will handle incidents or complaints of workplace bullying and harassment, including how and when to conduct investigations.
  • Train workers and supervisors about what bullying and harassment are.

If a worker believes that he or she has experienced or observed bullying or harassment at work, he or she should report it to the employer.  

If the employer decides to conduct an investigation, a reasonable investigation in British Columbia is one that is fair to all parties involved, so that means gathering information from the complainant and the respondent in a neutral way, explained Fiona McFarlane, a lawyer at Kent Employment Law in Vancouver, British Columbia. "The final conclusions of the investigation should not be prejudged by a workplace investigator before the workplace investigator has gathered and reviewed all evidence."

Sometimes, employers will hire an external investigator to gather information, conduct the investigation and report findings to both parties, noted Cissy Pau, principal consultant at Clear HR Consulting in Vancouver.

HR's Response

Confidentiality is a key aspect of a neutral workplace investigation, McFarlane noted. "A neutral workplace investigator should be gathering information from witnesses and not sharing information with witnesses."

To ensure a fair workplace investigation, Pau and McFarlane advised HR to adopt the following practices:

  • Get a written statement from the complainant that reflects the misconduct.
  • Document all details with "the five w's"—who, what, where, when and why.
  • Make sure the person accused of misconduct has a copy of the written complaint before an interview with the investigator.
  • Identify and interview key witnesses. The workplace investigator should not tell the witnesses about any information already gathered.
  • Create a paper trail, including a review of e-mails, notes, video footage or other tangible evidence.
  • Report all information back to the parties. The workplace investigator can draw conclusions using the civil standard of proof—meaning he or she has reviewed all evidence and has made findings of fact based on whether the incident occurred.

Above all, an employer should make sure any bullying or harassing behavior stops, Pau added.

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Policies Across Canada

Each Canadian province has different laws about workplace bullying and harassment.

McFarlane explained that Ontario's approach is different from British Columbia's because Ontario has legislation that requires an investigation.

Under Ontario's health and safety laws, employers must have a workplace harassment policy that includes procedures for workers to report incidents of harassment. Employers also have a general duty to protect workers from risks on the job, including physical and mental harm, according to Ontario's Ministry of Labour.

"In Ontario, the employer has a legal duty to make the workplace safe, so if there is any indication of behavior that would make the workplace unsafe, the employer must address it," Stam wrote.

Quebec also has policies and protocols to prevent psychological and sexual harassment, said Shana French, a lawyer with Sherrard Kuzz in Toronto.

As of Jan. 1, 2019, an amendment to Quebec's Labor Standards Act requires all workplaces in Quebec—regardless of size—to have a harassment prevention policy in place, including a complaints procedure.

Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.

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