Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2014 October 29, 2014 | Canadian Employment Law Today who fear harassment at the hands of their colleagues or managers are less produc- tive than those working in welcoming environments where workers' goals are aligned. And, as mentioned earlier, when that bullying extends to cyberspace, it be- comes even harder to manage. Lastly, employers are actively trying to curb bullying and psychological harass- ment due to recent court and tribunal rulings that have held corporations re- sponsible not only for the actions of their bully employees, but for paying damages to compensate victims for their suffering. Case in point: the highly-publicized case involving Meredith Boucher, a Wal-Mart employee who faced months of psycho- logical harassment from a manager. Af- ter complaining to her superiors, an in- ternal workplace investigation found no evidence of bullying. Boucher later faced discipline for making what the company deemed unsubstantiated accusations. Boucher subsequently resigned and sued both Wal-Mart and her former manager. In 2012, she was awarded a record settlement of $1.4 million, which was later reduced to $400,000 on appeal. e court also awarded Boucher $10,000 from the manager personally. e case helps to underline the seriousness with which courts are taking the issue. strategies for employers As with any employment law matter, workplace bullying and psychological ha- rassment are best dealt with proactively. Waiting until they inflict what could be ir- reparable damage will only exacerbate the impact on the organization. Here are five strategies to mitigate the effects of bully- ing and harassment before they emerge: Create and enforce a comprehensive employee policy manual. Workplace legislation in every province prohibits harassment. In Ontario, that legislation is the Occupational Health and Safety Amendment Act, which defines work- place harassment and outlines the zero tolerance policy organizations must communicate and enforce. at said, an organization's employee policy manual should reflect compliance with legislated requirements. Equally important is defin- ing what behaviours the company deems appropriate — both in the workplace and online. A policy manual's anti-bullying measures should include: • A zero-tolerance commitment statement from the organization's leadership team • Clauses outlining the policy's applicability to management, employees, clients, and other third-party vendors • A clear definition of workplace bullying and examples of unacceptable behaviour • A clear process for employees to follow when reporting incidents • A clear outline of the organization's work- place investigation process • An outline of steps the organization will follow to take corrective action when a bul- lying incident is confirmed • A commitment to confidentiality and dis- cretion • A no-reprisal and non-retaliation statement Develop a process to investigate inci- dents of bullying. Allegations of harass- ment must be properly investigated and documented. Failing to take this step can limit an organization's ability to defend itself against a lawsuit or human rights complaint. at means either outsourcing to a third-party investigator or assigning a manager or HR professional with inves- tigative experience to handle the matter, conducting extensive internal interviews to obtain facts relating to the allegations and ensuring due process and fairness by allowing all parties to provide input, then reviewing and responding to any allegation. Train managers. Any attempt to eradi- cate workplace bullying and harassment starts with executive and management- level training and awareness programs. It's only when senior leadership under- stands the scope of the problem that it can be enforced effectively. Managers should be coached on how to identify sus- pected bullying in the workplace, as well as how to handle employee complaints. ey should also be given proper proce- dures to follow when a situation needs to be escalated to the executive level. Most important, managers should be required to demonstrate appropriate and accept- able workplace conduct at all times. Encourage clear and open communi- cation. Many bullied or harassed em- ployees will never make their grievances known to management, or even their co-workers. at's because they're often so embarrassed, ashamed or overtly in- timidated by the actions of their tor- mentors that taking action becomes a non-starter. Organizations that estab- lish a clear mechanism for confidential dialogue and disclosure put themselves on a more stable footing when it comes to addressing these issues, while also helping to fend off the risk of costly law- suits or unfavourable tribunal rulings. Don't hire bullies. It may seem obvious, but the best way to avoid bullying in the workplace is to avoid hiring potential per- petrators in the first place. at's easier said than done, of course, but recruitment strategies that include some combination of psychometric testing, attitudinal assess- ment and tiered interviews that involve a cross-section of staff from across the or- ganization can have a hugely positive in- fluence on a company's staffing decisions. And when a bully manages to slip through, managers should be quick to terminate. Most bullies can't be reformed and their lingering presence in a workplace will only continue to sour engagement and impact organizational success. For more information see: • Canada Post Corp. v. C.U.P.W., 2012 Car- swellAlta 449 (Alta. Arb.). • Boucher v. Wal-Mart Canada Corp., 2014 CarswellOnt 6646 (Ont. C.A.). About the Author LAURA WILLIAMS 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.

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