Today, much of the Canadian work force believes they are being "bullied" or "harassed." But despite statutory definitions and workplace policies attempting to define this behaviour, it is still usually a matter of perception. A tough boss to one employee is often a bully to another. Since bullying and harassment are often in the eyes of the beholder, when do our courts and labour tribunals intervene? And when does bullying or harassment justify a successful lawsuit?
Management may be demanding, unsympathetic or even insensitive, but that alone does not afford employees the right to launch a lawsuit or render the company liable for inflicting mental distress.
Maria Amaral learned this lesson when she thought she had been bullied by her boss and her employer. Following a failed attempt at a promotion, Ms. Amaral refused to follow her manager's directives and was placed on probation. Believing that her employer of 23 years wanted her gone, she suffered a serious mental breakdown and left work never to return.
She then sued the company, its management and her boss for damages resulting from her breakdown, claiming that they deliberately or negligently inflicted mental suffering on her. In siding with the employer, the court confirmed that the threshold to find employers liable for psychiatric damage suffered by employees is a high one. An employer's conduct must be deemed extreme, flagrant or outrageous and calculated to deliberately impose harm.
The lesson: Workplace law does not provide compensation for every stress suffered by employees at the hands of their employer or its management – the conduct complained of must be objectively intolerable in the eyes of the judge, not just the employee.
A boss's criticism, however, has its limits. When performance management is no longer corrective but is designed to intimidate or insult an employee, it will amount to bullying. Dora Cooke succeeded in her legal claim when her boss crossed this line. Ms. Cooke's boss would express his performance expectations forcefully and sometimes with outbursts of anger. Ms. Cooke was often on the receiving end. She was called an "idiot" and "pathetic." On one occasion he gave her an IQ test, declaring that she would not pass the second question. Matters came to a head when Ms. Cooke was accused of a mistake and told that her performance must improve. She decided to leave and sue.
A judge found that Ms. Cooke was bullied. An employer is entitled to be critical of unsatisfactory performance and to take measures, disciplinary or otherwise, to remedy that problem. However, when those measures become so unreasonable that an employee cannot be expected to persevere, she may be able to resign and claim damages for constructive dismissal. Here, a boss's insulting language and outbursts of anger were enough to meet this test.
Not all bullies are managers. In one British Columbia case, a court sided with an employee when a co-worker was consistently rude and hostile, screaming, swearing and belittling her, often in front of customers. In another case, a bullied employee succeeded in his claim because a co-worker was verbally abusive and threatening. He even kicked open a door and refused to go away until the police came. In both cases, it was legally irrelevant whether the bully was in a position of authority. Rather, the fact that the employer was aware of the abusive behaviour and failed to take appropriate steps to stop it amounted to legal liability for harassment, as employers, not the employees, have an obligation to provide harassment-free workplaces.
Most employees need their jobs. Threatening them with dismissal, when unjustified, has amounted to bullying or harassment. In one of the first court cases to consider this behaviour, an Alberta judge recognized that it is an implied term of every job that an employer will treat its employees with civility, decency, respect and dignity, and awarded an employee damages stemming from unnecessary criticisms and threats of dismissal.
Recent legislative changes have also attempted to put a face on workplace bullying and harassment. One province defines harassment as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known as unwelcome." In Quebec, the first province to legislate a prohibition on "psychological harassment" at work, the Labour Standards Tribunal listed some examples of bullying as rude, degrading or offensive remarks, spreading rumours, ridicule, shouting abuse, belittling employees, ignoring them or making fun of their personal choices.
Human rights tribunals also define and prohibit harassment, except that it must be based on specific personal characteristics, such as gender, age, race, colour or religious beliefs. Thousands of harassment complaints are made each year to these tribunals with a far greater likelihood that they will succeed compared with a civil claim in court. This is because human rights tribunals are designed to interpret harassment and discrimination liberally. They exist to specifically adjudicate these very claims. Courtroom judges, on the other hand, often have little aptitude to get involved in workplace interactions and order its employees to behave nicely.
On the other hand, has the employee condoned the behaviour by participating in it or not protesting for a reasonable period of time, or does the workplace environment provide slightly more leniency in determining what's offside? Judges are human and many will agree that a construction site must not be judged the same as a library. Finally, as in many cases, does the employee need to have thicker skin?
Daniel A. Lublin is a workplace lawyer and a partner at Whitten & Lublin.
Daniel took questions on workplace bullying during an online chat on Thurs., Aug. 9. The transcript follows below.
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