Lawyers in Workplace Psychological Harassment

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Rights and Remedies in Cases of Psychological Harassment

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Workplace psychological harassment poses a serious threat to the psychological well-being of employees, presents a challenge for small and medium-sized businesses (SMEs) in the Greater Montreal Area dealing with such issues, and is a significant source of complaints settled by mediators or heard by courts and grievance arbitrators. It is better to prevent than to cure, and prompt action is essential when dealing with a problem of psychological harassment, which is often insidious and demoralizing for the harassed employee, sometimes leading to sick leave.

Shouting, threats, unfounded and humiliating accusations made in front of colleagues, speaking in an aggressive and threatening tone, public criticism in front of clients, and the use of physical force against an employee are all clear examples of psychological harassment. Some instances of psychological harassment in the workplace might not be immediately apparent, underscoring the importance for employers to engage the services of a lawyer familiar with handling cases involving workplace psychological harassment, and if necessary, it may be relevant to retain the services of a specialized investigator. Employees and owners of small and medium-sized businesses (SMEs) may be surprised to learn that the recourse for employees to report workplace psychological harassment in Quebec is relatively recent (i.e., since June 2004) and almost non-existent in Canada for employees in the federal sector (banks, telecommunications, maritime, railways, etc.) and federal government civil servants. Workplace psychological harassment can take various forms, including moral harassment, organizational harassment, and sexual harassment. At the federal level, with the current state of the law as of the writing of this article, an employee may report a situation of « workplace violence » undermining the health and safety of the employee or report a situation of discriminatory harassment. Is it truly psychological harassment? What is the employer's responsibility? What are the remedies for the harassed employee? Quebec, Canada, why the differences?

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Psychological Harassment as Defined by Law

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The majority of Quebec workers are governed by the Act Respecting Labour Standards or by an equally protective or even more protective collective agreement. So, let us start with Article 81.18 and the following articles of the Labour Standards Act, which define what psychological harassment is:

- Act Respecting Labour Standards, Art. 81.18

« For the purposes of this Act, 'psychological harassment' means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee's dignity or psychological or physical integrity and that results in a harmful work environment for the employee. For greater certainty, psychological harassment includes such behaviour in the form of such verbal comments, actions or gestures of a sexual nature.

A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment. » (Or emphasis).

Two things to keep in mind. Firstly, workplace psychological harassment is defined as reprehensible and repeated conduct or behavior that, over time, undermines the dignity and physical or psychological integrity of the employee. So, ignoring an employee, shouting at a colleague, or making fun of them in front of clients or other employees, if it is an isolated event, may not be sufficient to constitute psychological harassment under the law. However, if these are repeated events that, when taken individually, seem harmless but over a prolonged period gradually harm the employee, undermine their well-being, and create a harmful work environment, then it is appropriate to address the issue as psychological harassment.

Each case is unique and deserves careful analysis. Sometimes, what may not appear to be workplace psychological harassment at first glance may be so under the law. For example, an arbitrator has previously considered in a case that summoning an employee to a disciplinary meeting without an impartial investigation process and without any verification on the part of the employer can constitute psychological harassment. Workplace psychological harassment can also be organizational harassment when the employer intentionally and in bad faith abuses their management and directional rights by assigning excessive tasks and unfounded reproaches repeatedly, with the aim of psychologically breaking an employee.

Psychological harassment as defined by the law also includes the concept of sexual harassment. Unwanted words, actions, or comments with a sexual connotation could constitute psychological harassment. Therefore, employees and employers are advised to be mindful of their language and avoid making unwanted advances that could result in a sexual harassment complaint.

We invite you to consult the annotated Labour Standards Act prepared by Me Charles Caza for examples of accepted psychological harassment complaints and others that were not accepted. See attached: https://elois.caij.qc.ca/N-1.1/article81.18

Secondly, a single serious occurrence can constitute psychological harassment under the law. So, it must be a significant, very serious event that leaves the employee psychologically or physically destroyed, significantly affecting their well-being, dignity, or integrity. For example, jurisprudence has recognized that being the victim of an absolutely intolerable verbal attack or being physically forced to sign a resignation letter are conduct serious enough to be classified as psychological harassment. You can find the decisions attached: http://canlii.ca/t/1q72l et http://canlii.ca/t/fzh6v

At the federal level, the Canadian Labour Code or other laws concerning labor relations for federally regulated businesses or federal government employees do not explicitly address psychological harassment. Some may find this surprising, but it is important to understand that the recourse for reporting psychological harassment in Quebec only dates back to June 2004. So, what should you do if you are being harassed? First, if possible, talk to your employer and file a complaint with Human Resources (HR). For federal public service employees, there is often a multi-tiered mechanism in place for each department. However, the jurisdiction of the Federal Public Sector Labour Relations and Employment Board (FPSLREB) to hear complaints of psychological harassment at work is often contested. Sometimes, the term « workplace violence » is used. For federally regulated employees, whether unionized or not, federal laws, regulations, and decrees are not uniform, and each case is unique. Unionized employees can first consult their union, and those who are not unionized can seek advice from a lawyer familiar with handling workplace psychological harassment cases or at the very least inform HR. Psychological harassment is sometimes considered as « workplace violence » compromising the health of employees. Therefore, we invite you to consult this website from the Canadian Centre for Occupational Health and Safety (CCOHS): http://www.cchst.ca/oshanswers/psychosocial/violence.html

It is possible that the federal government of Canada may eventually codify psychological harassment in the Canadian Labour Code or another federal law to further clarify the concept, employee protection against psychological harassment, and the remedies available for reporting it.

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The Employer's Responsibility

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Owners of small and medium-sized businesses (SMEs) in Quebec have a vested interest in acting promptly and effectively when faced with a psychological harassment issue. Indeed, an employer cannot sit idly by and must be proactive when it comes to any situation of psychological harassment, if only to ensure that the grievance or complaint is well-founded. The Act Respecting Labour Standards stipulates that the employer has an obligation to take the necessary measures to ensure that employees are not subjected to psychological harassment:

- Act Respecting Labour Standards, Art. 81.19

« Every employee has a right to a work environment free from psychological harassment.

Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it. They must adopt and make available to their employees a psychological harassment prevention and complaint processing policy that includes a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual nature. » (Our emphasis).

Therefore, employers and human resources (HR) departments should establish a policy and a mechanism for addressing psychological harassment complaints. The same applies to companies with collective agreements. Any allegation of psychological harassment must undergo an investigation, at the very least an informal one, to verify the basis of the psychological harassment allegations. Employers may sometimes suspend the harassing employee with pay to initiate the investigation process. If it turns out that an employee has indeed engaged in harassment, they will need to be disciplined, and sometimes even terminated. Of course, this is an extremely delicate situation that can be very costly and demoralizing for all employees. Therefore, it is advisable for employers to consult with legal counsel and, if necessary and within the company's financial means, retain a specialized investigator in workplace psychological harassment. The investigator may visit the workplace, gather the testimony of the alleged victim, the employee, or the targeted employer, as well as that of other employees to determine if there has been psychological harassment as defined by the law.

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Recourses and Legal Remedies Provided by Law

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Non-unionized employees can file a complaint against their employer, even if the psychological harassment is caused by another employee, with the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) within two years of the last psychological harassment incident:

- Act Respecting Labour Standards, Art. 123.6 and 123.7

« 123.6 An employee who believes they have been the victim of psychological harassment may file a complaint in writing with the Commission. Such a complaint may also be filed by a non-profit organization dedicated to the defence of employees’ rights on behalf of one or more employees who consent thereto in writing.

With the employee’s consent, the Commission shall send to the Commission des droits de la personne et des droits de la jeunesse, under the terms of an agreement entered into by those organizations and approved by the Minister, any complaint that concerns discriminatory behaviour filed in accordance with this division. The agreement must also stipulate cooperative arrangements between those two organizations, to ensure any delay in sending the complaint is not prejudicial to the employee.

123.7 Any complaint relating to a psychological harassment conduct must be filed within two (2) years of the last manifestation of that conduct. » (Our emphasis).

The complaint may include incidents of psychological harassment dating back several years, but what matters most for the CNESST to consider the complaint is that there was a real incident of psychological harassment within the two (2) years preceding the complaint. Formerly, the deadline was only ninety (90) days but has been extended in the Act Respecting Labour Standards.

For employees covered by a collective agreement, they will need to file a grievance with the support of their union according to the procedure and deadlines set out in the collective agreement. The deadline for filing such a grievance for psychological harassment should be at least two (2) years or more. In most collective agreements, the union has the « life or death » authority over grievances, meaning that if the union, after investigating the merits of the grievance, believes that there was no psychological harassment, it can decide to let it go and not refer it to arbitration. Except in exceptional cases, the employee will not be able to be heard on this issue. Often, the abandonment of a psychological harassment grievance by the union becomes a source of conflicts, and remedies are available to employees who want to challenge the union's decision to abandon the psychological harassment grievance. For those interested, we invite you to consult our page on « Breach of Duty of Fair Representation by Union ». When referred to arbitration, an arbitrator specified in the collective agreement or appointed by the Minister of Labour, Employment and Social Solidarity will be selected to hear the grievances. A seasoned union delegate or a lawyer proficient in handling workplace psychological harassment cases can present the union member's point of view.

Also, some provincial government employees, such as Quebec provincial police officers, have their own mechanism for resolving disputes related to workplace psychological harassment. This is why it is important for employees who believe they are being harassed to consult with a lawyer in labour and employment law familiar with the concept of workplace psychological harassment to determine the most appropriate recourse for reporting the situation.

If the Tribunal administratif du travail (TAL), a grievance arbitrator, or any other tribunal authorized to hear complaints or grievances in labor law determines that an employee has indeed been a victim of psychological harassment, the employee may be awarded monetary compensation to compensate for all the troubles and inconveniences suffered. Other expenses could also be included, such as fees for consultations with a psychologist that the employee had to pay. Of course, the TAT or the grievance arbitrator may also order the employer to cease psychological harassment or sexual harassment and take other measures to compensate the employee and restore a healthy work environment.

We invite you to contact a lawyer experienced in handling workplace psychological harassment for assistance in preventing, addressing, or halting such behaviours in the workplace.