Bullying in the Workplace: an Employer’s Obligations

Bullying isn’t just a schoolyard thing. It also affects working adults, as well as the overall atmosphere of the workplace.  In 2009, the Ontario government introduced Bill 168, which amended the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill places positive obligations on employers to keep their workplaces free from bullying.

Since the introduction of Bill 168, courts and labour arbitrators have made it clear that these obligations will be strictly enforced.  This article will consider how to identify workplace bullying, briefly examine Bill 168, then look at several legal decisions that discuss the Bill’s application.

What is bullying?

As a very general definition, bullying is an aggressive behavior of harassment or violence, usually directed to one person.  Bill 168 separates workplace violence and workplace harassment, offering these definitions:

“workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome;

“workplace violence” means:

(a)  the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
(b)  an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
(c)  a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

A good example of workplace bullying (and how expensive it can be for employers) can be seen in the British Columbia Supreme Court’s decision in Sulz v Canada (Attorney General), [2006] 263 DLR (4th) 58.  In this case, the plaintiff, a former female member of the Royal Canadian Mounted Police (“RCMP”), claims that her immediate supervisors harassed her to the extent that she became so clinically depressed, she had no choice but to accept a medical discharge. The plaintiff was subjected to vulgar and aggressive language from her superiors, and received threats to her employment for going on medical leave due to complications with her pregnancy.

The Court found that the bullying had a severely negative impact on her mental health, affecting not only on her ability to work, but also on the extent to which she can enjoy her life and function as a member of her family and her community. As a result, the Court awarded the plaintiff $225,000 for past wage loss, $600,000 for future wage loss, and $125,000 for general damages, amounting to a grand total of $950,000.  The Crown appealed this decision, but the appeal was dismissed by the B.C. Court of Appeal.

Bill 168

The Bill officially came to life in 2010 when it received Royal assent. Among some of the obligations placed on employers, Bill 168 mandates that employers prepare policies relating to workplace violence and harassment, and review the policies at least once per year.  The Bill also prescribes how the program to implement the policies should be conducted, as well as how information should be distributed to employees. But perhaps most importantly, the Bill imposes a duty on employers to take precautions for the protection of an employee if there is a likelihood the employee may be subjected to bullying, either through harassment or violence, in the workplace.

For small and medium-sized employers, developing and implementing Bill 168’s policies can cumbersome and expensive, considering their limited resources.  Lawmakers did account for this problem to a degree by adding an exception that the regulations do not apply if the number of employees regularly employed at the workplace is five or fewer, unless an inspector orders otherwise. But if an employer has more than 5 regular employees, the rules must be strictly followed.

Recent examples of Bill 168 in action

In General Motors of Canada Ltd. V. Martin, 2009 CanLII 71654 (ON LRB), the Ontario Labour Relations Board heard a matter involving three separate complaints over a period of several months in 2009.  In all three complaints, an employee had verbally harassed another employee, either by threatening him with violence, or by calling him inappropriate names. The Board said this conduct amounts to workplace harassment.  What made this decision interesting is that fact that Bill 168 received royal assent after the alleged complaints, but before the Board’s decision was handed down.  As well, this particular GM plant in Windsor, ON, was scheduled to close.  It was argued that implementing Bill 168’s policies and training the workforce would be unnecessary.  The Board disagreed, ruling that GM was statutorily obligated to train the workers at the plant on a policy and program prior to the plants closing.

The Board’s Vice-chair John Lewis took the opportunity to make the following comments about Bill 168:

With the passage of Bill 168, the Act requires employers to prepare and post workplace violence as well as workplace harassment policies.  Employers are required to develop and maintain programs to implement both the workplace violence policy and the workplace harassment policy.  Workplace violence programs are required to have measures and procedures for workers to report incidents of workplace violence to the employer or supervisor and the means by which the employer will investigate and deal with incidents or complaints of workplace violence.

Bill 168 also requires employers to train workers as to the contents of workplace violence and workplace harassment policies.  The Bill also requires employers assess risks of workplace violence that may arise from the nature of the workplace and the work performed and must advise the Joint Health and Safety Committee, or the health & safety representative or workers directly of the results of such assessment.  Bill 168 even requires the employer to provide personal information about a person with a history of violent behaviour but such information is limited to what is reasonably necessary to protect a worker from physical injury. [Emphasis added]

In Universal Workers Union (Labourer’ International Union of North America, Local 183) v. Teston Pipelines Ltd, 2011 CanLII 78812 (ON LRB), the Labour Relations Board was tasked with deciding whether to uphold a 5-day suspension imposed on a worker who threatened to kill his foreman on two separate occasions. In making its decision, the Board made the following unarguable comment of law: “No employee should ever threaten to kill anyone else at work, much less his foreman.”

The Union argued that the worker was under considerable emotional stress at the time the comments were made, fuelled by a recent separation from his wife and children. Ultimately, the Board decided that these threats fit squarely within the definition of workplace violence, and that the employer is required to act, both to deal with the unacceptable behaviour, and to take steps to ensure that its policies are known and understood. The suspension was upheld.

In Kingston (City) v. Canadian Union of Public Employees, Local 109, 2011 CanLII 50313 (ON LA), Arbitrator Elaine Newman heard a matter involving an employee with 28 years seniority bullying a co-worker. The main allegation relates to when the woman made a death threat to her Local Union President. The Arbitrator held that under the Bill 168 amendments, an employer must react to an allegation of a threat: it must not be trivialized. In this case, it was held that the Employer took this language very seriously, and made that message clear and unequivocal.

However, it was noted that here is nothing in the Occupational Health and Safety Act that requires that an employee, found to have committed an act of workplace violence, be automatically terminated. While there are a variety of ways to deal with the matter, it is ultimately for the employer to determine, at the end of an appropriate investigation and consideration of options.  In this case, the City of Kingston decided to terminate the employee, factoring in the employee’s history of harassment in the workplace. The Arbitrator upheld the City’s decision.

Comments and employer’s duties

Bill 168 was introduced mainly as a result of the lobbying efforts of the family of Lori Dupont and Theresa Vince.  Dupont was killed by her ex-boyfriend, Dr. Marc Daniel, in 2005 at Hotel-Dieu Grace Hospital in Windsor, Ont., where they both worked. The hospital was aware Daniel had been harassing Dupont and that the situation was getting worse, but it did not discipline him. Theresa Vince was shot in the face and killed in Chatham in 1996 by a boss who had sexually harassed her for more than a year and against whom she had filed a harassment complaint.

The amendments are based on the theory that workplace violence can be foreshadowed, and that in many cases, it’s predictable.  By heeding the signs of danger, communicating clearly, and acting with clarity, violence can be prevented when employers, supervisors, and workers come together.

Under Bill 168, Employers must:

1. develop and maintain an unambiguous program to implement workplace violence and harassment policies;
2. designate a person as a workplace coordinator with respect to workplace violence and workplace harassment, and set out the duties of the coordinator;
3. take every reasonable precaution in the circumstances to ensure the protection of a worker should the employer become aware, or ought reasonably to be aware, that domestic violence that would expose a worker to physical injury may occur in the workplace;
4. provide information and instructions to the employees on the contents of the policy and program with respect to workplace violence and harassment; and
5. set out a fair and transparent process for investigating complaints;