BULLYING AND HARASSMENT WORKPLACE VIOLENCE, WHEN A … · 2019. 10. 28. · bullying and harassment in the workplace. Assess whether a bullying and harassment investigation undertaken

Harris & Company LLP

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Workplace Law& Advocacy

WHEN A POLICY ISN’T ENOUGH: WORKPLACE VIOLENCE, BULLYING AND HARASSMENT AND EMPLOYER OBLIGATIONS

BCMSA/PWABC Joint Annual Conference 2019

Kacey A. Krenn

Workplace Law & Advocacy

Agenda

• Statutory and Legal Obligations • Claims and Prevention• Responding to Claims of Bullying &

Harassment• Policy Requirements• Investigating Complaints


STATUTORY & LEGAL OBLIGATIONS

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Workers Compensation Act

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Legal Obligations: Workers’ Compensation Act

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Section 107• To promote culture of commitment by workers and

employers to a high standard of OH&S• Prevent work-related accidents, injuries and

illnesses• Environment which provides for the health and

safety of workers and others• To ensure shared responsibility for occupational

health and safety


Employers’ ObligationsSection 115 Workers Compensation Act“employer general duty section”

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Ensure the health and safety of all workers

Inform, instruct, train and supervise workers

Remedy workplace conditions, hazardous to the health and safety of workers including… workplace bullying and harassment


Workers’ Compensation Act

Ensure that workers under his/her supervision:- Are aware of all known or reasonably foreseeable

health and safety hazards- Comply with Act and Regulations

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Supervisor Duties:


Workers’ Compensation Act

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Worker Duties

Protect own safety

Protect safety of others

Take reasonable steps to prevent and address hazardous conditions, including reporting bullying and harassment


Claims:Section 5.1 of the WCA: Pre-Bill 14

Worker entitled to compensation for “mental stress” only if the mental stress was:

1. An acute reaction to a sudden and unexpected traumatic event arising out of or in the course of employment.

2. Diagnosed by a physician or a psychologist as a physical or mental (DSM) condition; and

3. Not caused by a decision of the worker’s employer relating to the worker’s employment

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Claims:Section 5.1: Post-Bill 14

Section 5.1 now provides compensation for mental “disorders” where:

• Mental disorder is a reaction to one or more traumatic events arising out of or in the course of employment

• Is predominantly caused by a significant work-related stressor, including bullying and harassment, or a cumulative series of significant work-related stressors

• Diagnosed by a psychologist/psychiatrist• Excludes employment decisions of worker’s

employer, but HOW communicated may create claim

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Mental Disorder Claims, by eligibility status:

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Allowed Disallowed No Adjudication Pending Rejected Suspended Total

2016 1,253 1,061 250 2 18 1,041 3,625

2017 1,351 1,093 280 4 15 1,191 3,934

2018 1,516 937 282 381 20 1,268 4,404


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19% 13%

*2016 General Social Survey on Canadians at Work and Home (GSS)

Harassment in Canadian Workplaces (December, 2018)


Mental Disorder Claims: Bullying and Harassment

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Test for compensation:1. Diagnosed mental disorder:

Psychologist/ Psychiatrist2. Has to either be:

a) A reaction to one or more traumatic events; or

b) A significant work-related stressor (includes bullying and harassment)

3. Predominantly caused4. Excludes legitimate supervisory

activity


Assessment of Claim(s)

2 (a) Traumatic Event

- “Sudden and violent physical or mental impression”

- “deeply disturbing and distressing”

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2 (b) “Significant work-related stressor”

• Excessive in the intensity and/or duration from what is experienced in normal workday pressures or tensions

Examples: deliberate physical contact• Threat of “kicking teeth down throat” or “wanting to

punch a wall”• Threatening, coercive or abusive • Safety breaches and retaliation

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2 (b) Not Significant Workplace Stressors

• Personality conflicts unless abusive or intimidating• Some swearing and/or name-calling• Staring/glaring at worker• Social media posts, if not tied to worker’s

employment• Thoughtless, rude or loud communications

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3. Causation – “Predominant Cause”

• Clear evidence linking disorder to workplace events

• Lack of evidence linking disorder to any other cause

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Mental Disorder Claims

90 days to Review Division

90 days to WCAT

Discriminatory Action Complaints

30 days to WCAT

90

90

Appeal rights

WorkSafeBC gets it wrong…a lot


Prevention is key Impact on employees

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ProductivityAnxietyAccidents & injuries

Mental health


What Prevention Officers can/will do20

Ensure that employers have appropriate framework for dealing with bullying and harassment in the workplace.

Ensure that employers are applying their bullying and harassment policies.

Assess whether employers are taking reasonable steps to prevent bullying and harassment in the workplace.

Issue orders for failure to comply with the provisions dealing with bullying and harassment in the Workers Compensation Act.

Evaluate whether a penalty should be issued for any failure to comply with the provisions dealing with bullying and harassment in the Workers Compensation Act.


What Prevention Officers cannot/will not do

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Screen any complaints made by employees regarding bullying and harassment in the workplace.

Assess whether a bullying and harassment investigation undertaken by the employer was properly decided.

Overturn a finding with respect to bullying and harassment that has been made by an employer.

Provide compensation to a complainant who alleges bullying and harassment in the workplace.


RESPONDING TO CLAIMS OF BULLYING & HARASSMENT

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Respond effectively

to bullying and harassment

Review your policy

Be aware of other sources of complaints

Conduct a fair investigation

Annual audit of Complaints / processes


Complaint Issues:

• Collective Agreement Interaction• Union involvement in Investigations• Confidentiality• Investigations:

– Competence– Notes & Records– Witnesses’ Rights

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Definition of Bullying & Harassment

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Inappropriate conduct or comment

By a person

Towards a worker

That a person knew, or reasonably ought to have known, would cause that

worker to be humiliated or intimidated


Broad Application

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WORKPLACE PARTIES

• Employer• Supervisor• Co-worker

• Member of the public• Client• Anyone a worker

comes into contact with at workplace

NON-WORKPLACE PARTIES


Who is the ‘reasonable person’?

• “… The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions…”

• Objective standard• Subjective considerations as well

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Examples

Verbal aggression or insults

Harmful or offensive initiation practices

Targeted social isolation

Vandalizing worker’s belongings

Cyber bullying

Personal attacks based on private life or personal traits

Spreading gossip or rumours

Sabotaging work

Aggressive threatening gestures

Physical assault or threats

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Exceptions

• Work instruction, supervision or feedback

• Workloads and deadlines

• Discipline, suspension, terminations

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• Job duties or work to be performed

• Work evaluation• Performance

management• Lay-offs, transfers,

reorganizations


Exceptions

• Expressing differences of opinion• Offering constructive feedback, guidance, or

advice about work-related behaviour and performance

• Making a legitimate complaint about someone’s conduct through established procedures

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What is Discrimination?

• Section 13 of the Human Rights Code• Prohibited to discriminate in employment

because of:• sex, race, colour, ancestry, place of origin, political belief,

religion, marital status, family status, physical or mental disability, sexual orientation, age, gender identity or expression, or criminal conviction unrelated to the person’s employment

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Sexual Harassment

• Conduct or comments of a sexual nature OR based on sex

• That is unwelcome• Detrimentally affects the work environment

or leads to adverse job-related consequences

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Sexual Harassment

Examples:• Unwanted touching• Unwelcome sexual flirtations, advances or

propositions• Sexually suggestive, obscene or degrading comments,

gestures or jokes• Displaying or circulating material of a sexual nature• Unwelcome comments or questions about sex life,

appearance or clothing

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Violence

• If bullying and harassing behaviour becomes violent or involves threat of violence

• Employer must take appropriate action to eliminate or minimize risk of workplace violence

• If violence results in injury, must investigate and report to WorkSafe

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POLICY REQUIREMENTS

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Policy Requirements

Set out the duties of:

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Employer Supervisors Employees


Employer Duties

• Create policy statement• Prevent or minimize bullying and harassment• Establish reporting procedures• Investigation and response• Train supervisors and employees• Enforce policies/procedures• Review policies annually

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Supervisor and Employee duties

• Report bullying or harassment, whether:– Experienced; or– Observed

• Comply with policy/procedures

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When to Report

Timely reporting facilitates prompt and efficient investigation and intervention by the employer.

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Reporting Procedures

Informal resolution– Discuss concerns directly

(This step is not mandatory)

– If informal resolution fails, proceed to formal complaint/investigation

Formal complaint– Under the reporting procedure set out in policy

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Informal Process

• Both parties must agree• If resolved, complaint dismissed• If not successful – formal complaint and

investigation

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Other Requirements for Employers

• Prevent or minimize bullying & harassment• Train supervisors and workers• Conduct annual review of policy, reporting

procedures


INVESTIGATING COMPLAINTS

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What will be included?

Interviews:– Complainant– Respondent– Any witnesses

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Reviewing evidence:– Documents– Emails– Photos


Roles and Responsibilities

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Employer/Supervisor Employee Investigator

• Ensure procedures are followed

• Cooperate in investigation

• May be internal or external


Conducting Effective Investigations

• Provide a fair process• Obtain all relevant information• Make findings of fact• Make a sustainable decision based on the

facts

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• Who should investigate?– Must be unbiased– Internal vs. external investigator

• Respondent must be given substance of allegations

• Respondent must be given opportunity to respond

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• Role of investigator:– Collect evidence– Evaluate facts & assess credibility– Make findings and/or recommendations

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• Interviews:– Advise of role of investigator– Confirm duty to investigate– Give confidentiality caution– Requirement for honesty– No retaliation

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• Evaluate evidence• Includes assessment of credibility • Make findings based on policy• Beware of hearsay or coached evidence


Follow-up

• Notification of investigation findings• Corrective actions

– If bullying, harassment or discrimination has occurred

– False/malicious complaints– Obstruction of investigation

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QUESTIONS?