Canadian Employment Law Today

WORKPLACE bullying can have severe effects on the workplace — not just on bullied workers, but also on employers who may suffer a decrease in productivity from distracted workers and a poisoned work environment. Bullying isn't acceptable anymore, and jurisdictions have taken legislative action to further motivate employers to fight the good fight against workplace violence and bullying. Employers know they have to protect their employees from such circumstances, but what are the best ways to go about it? HR lawyer Laura Williams outlines key strategies employers can follow to protect their employees from bullying and themselves from legal and productivity headaches. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2015 CASE IN POINT: PSYCHOLOGICAL HARASSMENT The good fight against workplace bullies 4 strategies to help mitigate the risk to employers posed by workplace bullying and harassment BY LAURA WILLIAMS O f the many workplace issues faced by employers in Canada, workplace psychological harass- ment and bullying is becoming increasingly prominent and in turn, recog- nized in employment law. Courts across the country are actively ac- knowledging the impact that workplace ha- rassment can have on an employee's physic- al and mental well-being — not to mention their productivity — and delivering rulings designed to compensate employees for psychological injuries. is is a major de - parture from decades past, when a touch of bullying was considered a veritable rite of passage in the corporate world. A boss pick- ing on an employee was not only acceptable, but a part of life. Many bullied employees would eventually mete out similar treat- ment to colleagues and their direct reports. Further spiking the incidence of this mis- conduct is the prevalence of cyberbullying, which can extend beyond the workplace. Cyberbullying is just as insidious in its reach and impact, and with email and so - cial media, far easier to carry out. Cyber- bullying policy enforcement, on the other hand, poses a far greater challenge for time- pressed and resource-limited employers. As a result, many incidents of online psycho - logical harassment go unnoticed by em- ployers who are struggling to manage their businesses, let alone monitor their employ- ees' electronic communications both inside and outside the workplace. Negatives for employers and employees Despite the increasing awareness of harass- ment and bullying in the workplace, the incidence of psychological abuse is still sub- stantial. According to a 2012 survey of more than 6,600 employees by Ipsos Reid, 70 per cent of Canadian employees report some concern related to psychological health and safety. e toll of this kind of harassment has on employees and employers cannot be underestimated. As the Canadian Centre for Occupational Health and Safety notes on its website, victims of workplace psych - ological harassment can experience a range of debilitating health effects, including an- ger, feelings of frustration, inability to sleep, stomach pains, headaches, inability to con- centrate, and low morale and productivity. In addition to health problems for em- ployees, psychological harassment can negatively affect an organization's perform- ance. For example, a study by the Mental Health Commission of Canada indicated that lost productivity related to absentee- ism, presenteeism and employee turnover costs employers $6.3 billion each year. ese costs include expenses related to stress-re- lated illnesses, short and long-term dis- ability claims, use of Employee Assistance Plans, human rights violations, health and safety breaches, and low employee morale. One recent case law development dem - onstrates the trend of recognizing the effects of psychological harassment and bullying on employees, as one tribunal expanded entitlement to workers' com - pensation benefits for mental stress. In April 2014, Ontario's Workplace Safety and Insurance Appeals Tribunal (WSIAT) declared ss. 13(4) and (5) of the Ontario Workplace Safety and Insurance Act re - lating to mental stress to be unconstitu- tional and refused to apply the provisions. e legislation distinguishes physical from psychological injuries, and the sections dis- qualify employees from making claims for mental stress, except for traumatic mental stress — which involves "an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of… employment." As such, entitlement would only be granted where there is a "sudden" or "traumatic" event, and would be denied for mental stress caused over a period of time. ese provisions were considered by the WSIAT in a case involving an Ontario nurse who faced psychological harassment and bullying from a doctor for whom she worked for 12 years. e nurse was regu - larly embarrassed in front of her peers and patients and was required to communicate with the doctor only through written notes. When the nurse raised her concerns, she faced effective demotion with a reduction in responsibilities. She soon developed a psychological injury with anxiety and de - pression, and was unable to work. e nurse's subsequent workers' com- pensation claim was denied because her mental stress was not "an acute reaction to a sudden and unexpected traumatic event" as per the legislation's criteria. e nurse chal - lenged the decision in an appeal, arguing her equality rights had been violated under the Canadian Charter of Rights and Freedoms. e WSIAT ruled the Worker's Safety and Insurance Board's criteria unconstitutional on the grounds that psychological injuries can occur over time and needn't be "sudden and unexpected." e WSIAT declined to apply the provision and granted the nurse entitlement to benefits for mental stress. e repercussions from the ruling remain to be seen — WSIAT decisions are only binding on the parties involved — but its direction could shape formal policy or lead to legislative changes in the years ahead. It appears this approach has already gained traction, as the WSIAT in Decision No. 1945/10 recently granted a worker entitle - ment to benefits for mental stress. In tandem with legal developments, there has been a growing body of guide- lines and policies encouraging employers to create psychologically safe workplaces. One such guideline is the Canadian Stan-

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