Canadian Employment Law Today - sample

6 | April 3, 2019 Canadian HR Reporter, a Thomson Reuters business 2019 Cases and Trends harassment (13 per cent of women and 10 per cent of men report being on the wrong end of a verbal tirade), while six per cent of women and five per cent of men say they've been humiliated by a colleague. ree per cent of men and women say they've been threatened in some way. Interestingly, the report noted that, "about 47 per cent of men and 34 per cent of women who had been harassed by a supervisor or manager had a weak sense of belonging to their current organization, compared with 16 per cent of both women and men who said they had not been harassed at work in the past year." It's clear that workplace bullying and psy- chological harassment haven't been eradi- cated. Both are as insidious as ever and are having a detrimental impact on organiza- tions' ability to attract, retain and engage top talent. ey also hamper operational perfor- mance and stifle bottom-line growth. e difference between the workplaces of yesteryear and today — shaped as the latter are by enhancements to human rights and employment standards protections, as well as social movements such as #MeToo — is that we're now far more conscious and nota- bly less accepting of questionable behaviour. Many leaders are actively trying to break a cycle that often sees bullied employees inflict similar emotional harm when they eventu- ally reach the management ranks. One of the main reasons for this change in approach is that bullying is no longer a consequence-free pastime. Numerous court decisions across Canada in recent years have seen employees awarded significant compensation for psy- chological injuries sustained on the job. More complex and difficult to control is the bullying and psychological harass- ment that occurs outside the workplace. Cyber-bullying has become pervasive, with employees connected via social media plat- forms and free to comment on each other's personal lives (or not, in those cases when individuals make active attempts to ignore and isolate their peers). e last responsibil- ity any employer — particularly one strug- gling to manage and grow its business — wants is to have to police employees' online, after-hours activities. e reality is that even with comprehensive cyberbullying policies, enforcement can be a major challenge. Harassment can be subtle Sometimes the counterproductive behav- iour can be even harder to detect. Take the phenomenon dubbed Tall Poppy Syndrome (TPS), as just one example. It's an age-old metaphor that refers to a farmer cutting down flowers in a field, all so that no one grows taller than the rest. In the workplace, this behaviour is often sparked by jealousy among colleagues and manifests itself in at- tempts to 'cut down' co-workers by under- mining their work, dismissing their ideas or even sabotaging their career advancement. A recent study into TPS found that 87 per cent of the more than 1,500 respon- dents from across industries said they had been undermined by co-workers or manag- ers in the workplace, while 69 per cent said that bullying had a negative impact on their productivity. Fully 57 per cent reported be- coming disengaged from their work after being undermined, and 60 per cent said they looked for new employment as a result. Rumeet Billan, principal at Viewpoint Leadership Inc. — the Toronto-based HR consultancy that spearheaded the TPS study — explains that a wide range of fac- tors, from envy to racism to sexism, tend to fuel this counterproductive behaviour. "I equate it to the culture of competitiveness versus a culture of support and achieve- ment," Billan says. "If someone achieves something, it's like they're taking some- thing away from you. at's the perspec- tive, but that's not the case." It's important to point out that every province has extensive anti-bullying and harassment legislation designed to protect workers. Some jurisdictions regulate these behaviours through workplace compensa- tion frameworks or occupational health and safety statutes. In Ontario, Bill 132, the Sexual Violence and Harassment Action Plan Act, 2016 amended the Occupational Health and Safety Act to require employers to investigate all incidents and complaints of workplace harassment. e law also com- pels organizations to develop workplace ha- rassment policies and empowers inspectors to demand third-party investigations at the employer's expense should an initial harass- ment investigation be deemed insufficient. Ontario's Bill 127, the Stronger, Health- ier Ontario Act, 2017, granted Workplace Safety and Insurance Board (WSIB) ben- efits to employees suffering from mental health injuries. However, more than 90 per cent of chronic mental stress claims have thus far been denied under the legislation thanks to a pair of 2018 arbitration deci- sions which found that individuals are pro- hibited from making claims and seeking damages from their employer outside of the WSIB system in cases where those claims would be subject to WSIB compensation. Opportunity to engage employees Although managing workplace bullying and harassment may be an ongoing challenge for employers, progressive organizations should view this seeming burden as an op- portunity to engage their employees, ensure full legislative compliance and optimize their workforce to improve business results. Doing so means developing a compre- hensive policy manual including an em- ployee code of conduct that highlights un- acceptable behaviours and establishes clear consequences for violations. at includes offences committed both inside the work- place and beyond — think email or social media. Anti-bullying provisions should define a zero-tolerance policy — with defi- nitions of bullying and harassment in all forms — that applies to management, em- ployees, clients and third-party vendors. e policy should outline a process for reporting incidents, a roadmap explaining how investigations will be conducted and how the organization will address these be- haviours, while also providing confidential- ity and non-retaliation guarantees. Every suspected incident of harassment must be investigated — which could neces- sitate outsourcing the task to a third-party HR consultant or lawyer with expertise in the area — details should be carefully docu- mented and both sides must be allowed to respond to the allegations and findings. Re- member that the successful implementation of any policy or ensuing investigation will be predicated on adequate training of your leadership team. Because so many employ- ees are promoted to management positions without proper training or time to adjust to their new roles, organizations often in- advertently violate employment standards and human rights laws, exposing them to complaints and costly litigation. Managers should be trained to recognize harassment and bullying, coached on how to intake and manage complaints, and then be given the tools needed to rebuild workplace morale once the investigation process is complete. Lastly, it's important to note that one of the best ways to mitigate the potentially devastating organizational impact of work- place bullying and psychological harassment is to avoid hiring bullies in the first place. at means building a recruitment process around your organization's core values, then using tools such as psychometric testing, at- titudinal assessment and a thorough inter- view process to screen out cultural misfits. When they do slip through the cracks, it's incumbent on management to take action and either discipline or terminate those in- dividuals to prevent their poor attitude from tainting the entire workplace culture. In the end, it takes a proactive approach to shield an organization from unwanted be- haviour — and ongoing vigilance to ensure that guard is never let down. Laura Williams is the founder and principal of Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205- 0496 or lwilliams@williamshrlaw.com. « from WORKPLACE HARASSMENT on page 1 Tall poppy syndrome an example of subtle harassment

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