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Workplace Bullying and Bill 168

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HRM855 – The legal Environment | Bullying in the Workplace | The law, its implications, and the future | For: Bob Thompson | By: Anthony DeRose
Mike MortonPerna CaputoSaralyn ManzanoTara Knight | 3/24/2015 |

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Bullying in the workplace is a serious issue and more prevalent than ever. The University of Windsor’s Odette School of Business in 2011 found 40% of Canadians experience one or more acts of workplace bullying a week. The Canadian Safety Council reports that 75% of victims quit (CBC News). Not only does workplace bullying have serious negative consequences for an individual’s career, it can have a devastating impact on mental and physical health. The damages associated with bullying are exemplified in the following.

The legislation in Canada that protects workers from bullying is in its infancy. It does not use the term bullying at any point. Victims of bullying can receive remediation through the common law and statutes. However, as Human Resources Professionals it is our legislated duty to provide safe workplaces for the employees we manage. Additionally, our responsibility is to mitigate the costs of litigation posed by bullying. Proactive HR policies that emphasize education and open communication, combined with legislation that deters this negative pattern of behaviour will help to minimize this risk and associated expenses.
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What is workplace bullying?
According to the Canadian Centre for Occupational Health and Safety (CCOHS) workplace bullying involves a pattern of negative conduct intended to intimidate, offend, degrade, or humiliate a certain person or group. Bullying can involve negative physical contact but in the workplace it usually surfaces as acts or comments that can mentally hurt and/or isolate its target(s).” It is not a coincidence that most cases of workplace bullying involve a power imbalance (i.e. supervisor v. employee). This relationship is exemplified in Boucher v. Walmart, which we will discuss later in this report. Bullying can also be committed among peers of equal standing within a company.

This description of bullying is similar to that of workplace harassment. Harassment is defined as “any vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcomed” (Ontario Ministry of Labour). Bullying is a form of harassment but maintains a few distinguishing elements including: * Bullying is a pattern of negative behaviour characterized by repeated incidents. The aggressive conduct is sustained over a period of time. Harassment can be sustained or a one-time event. * Bullying can be more subtle than harassment * Workplace bullying typically involves the mental or emotional harm of a particular person or group. Unwanted physical contact at work would likely be considered and dealt with as workplace violence under the OHS (i.e. physical force, attempted physical force, and/or threats)

Employees are protected from bullying and harassment under the same Occupational Health and Safety (OHS) legislation.

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Examples of workplace bullying * Excluding or isolating someone, Making offensive jokes * Intimidating someone, Spreading hateful gossip or rumours, Consistently criticizing or belittling a person * Setting someone up to fail (i.e. assigning unreasonable duties/workload or setting impossible deadlines) * Intruding on someone’s privacy * Undermining or deliberately impeding a person’s work * Physically abusing someone or issuing threats

When in doubt use the reasonable person test (i.e. would most people think this is unacceptable malicious behaviour?).
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Framing workplace bullying within the law: Is bullying covered under Statutory or Common Law?
In cases of workplace bullying, victims can seek justice in both statutory and/or common law depending on the scenario (exception: issue estoppel).

Workplace Bullying & Statutory Law
There are two statutory laws that a victim of bullying could seek remediation through: the Occupational Health and Safety Act (OHSA) and the Canadian Human Rights Act (CHRA)/Ontario Human Rights Code (OHRC).

Occupational Health & Safety Act (OHSA) * Few jurisdictions in Canada have OHS legislation specific to bullying, including Ontario * Bullying is prohibited via Bill 168 under Ontario’s OHSA and is indirectly addressed under the General Duties of Employers * Bill 168 - Workplace Violence & Harassment * Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome * May include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls * In OHSA under the General Duties of Employers an employer must: * Take every precaution reasonable in the circumstances to protect worker health, safety, and wellbeing * Prepare policies with respect to workplace violence and workplace harassment and review them at least once a year * Regardless of how many workers they employ, develop programs supporting workplace harassment and workplace violence policies and include measures and procedures for workers to report incidents of workplace harassment and workplace violence, and set out how the employer will investigate and deal with incidents or complaints. * Where there is no specific legislation addressing bullying, the general duties establish the need for employers to protect employees from risks at work. These risks include harm of both a physical and mental/emotional nature * Complaints of harassment can be filed with the Ministry of Labour (MOL) * The police should be called in emergency situations where threats or actual violence happens at work * NOTE: The Ontario Labour Relations Act (OLRA) provides unionized victims with a means to seek resolution via the collectively agreed upon grievance process

Canadian Human Rights Act (CHRA) and Ontario Human Rights Code (OHRC) * CHRA and OHRC strictly prohibits bullying based on any of the 11 prohibited grounds of discrimination (race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, a conviction for which a pardon has been granted or a record suspended) * Claims can be reported to the Human Rights Tribunal of Ontario (HRTO) which will prompt an investigation and subsequent action if necessary (i.e. mediation or trial) * In our practical scenario [Appendix 1], if Anthony had stated that Perna deserved such awful treatment based on any of the above prohibited grounds he (and the employer) could be ordered to appear in front of the HRTO and to pay damages to the victim. * The Tribunal can order three types of remedies if discrimination is found: * Financial compensation (damages) * Non-financial measures to benefit the victim (i.e. promotion, letter of reference, etc.) * Public interest remedies (intended to prevent similar cases from happening again)

Workplace Bullying & the Common Law Situations involving workplace bullying can also be actionable under the common law. When approached through the common law instead of through the statutes it is likely viewed within the parameters of tort law, contract law, or both.
Tort Law * The torts that is most relevant to cases of bullying at work is the intentional infliction of mental suffering or emotional distress * Where one engages in conduct against an individual or group that is reasonably known, or ought to have been known to cause mental suffering or emotional distress * There are two elements to this tort, as described in the appeal of Piresferreira v. Ayotte (2010) * Flagrant and Outrageous Conduct * Reckless Disregard – harmful consequence is reasonably foreseeable by the perpetrator * Both elements are satisfied by Anthony’s behaviour in the [Appendix 1] practical example * CASE EXAMPLE: Piresferreira v. Ayotte (2010) * Piresferreira (P) had been Account Manager for Bell for 10 years under supervision of Ayotte (A), who was a critical, demanding, loud and aggressive manager * Her performance reviews, prepared by Ayotte indicated she needed to improve * Piresferreira described by co-workers as nervous & sensitive (clashing personalities) * 2004, A becomes especially verbally abusive towards P in year-end appraisal * 2005, P attempts to justify her efforts to A by asking he read email on her phone - He does not want to hear explanation but she persists, holding phone in front of him – A tells P to get away from him and pushed her on her shoulder * P goes on sick leave due to stress and anxiety resulting from work harassment * HR attempts to rectify situation (formal apology and disciplinary action against A with which A complies) * P never returns to work, sues and wins at trial for negligent infliction of mental suffering (by Bell), as well as intentional infliction of mental suffering and battery (by Ayotte), ordering Bell to pay $225,000 and Ayotte jointly liable for the sum of $200,000 * On appeal the judge strikes down the tort of negligent infliction of mental suffering (not applicable to employment law) and intentional infliction of mental suffering (did not meet two elements below) but awards $15,000 to P for batter which Bell and Ayotte are jointly liable for and an additional $45,000 to Bell for constructive dismissal * The tort of negligent infliction of mental suffering is not applicable in the employment context due in part to the decision made by Iacobucci J. in Wallace v. United Grain Growers Ltd. (SCC) * Iacobucci rejected the notion that a tort existed for breach of good faith by employers in dismissing employees because such a radical shift in employment law is better to be left to the legislatures * Based on this, the Court of Appeal Judge in Piresferreira v. Ayotte decided that a general duty of care of employers to shield an employee during the entire course of his or her employment from acts in the workplace is “far more expansive” than the duty to act in good faith during the termination process and is therefore not applicable * Successful claimants will receive appropriate damages as decided by the presiding judge * Torts of assault and battery are more relevant to cases of workplace violence (physical bullying)

Contract Law * The employment law issue is one of a breach of contract via constructive dismissal. * This is where there has been a fundamental breach of the employment contract, specifically the provision that the employer has to provide a harassment free workplace * Because the tort of negligent infliction of mental suffering by the employer is not applicable in the context of employment law (refer to Piresferreira v. Ayotte) victims of bullying that are forced out of the workplace can make claims of constructive dismissal against the employer * Failing to address harassment constitutes a fundamental change to the nature of the employment contract * Can seek damages in the form of notice * In the [Appendix 1] practical example, Perna could easily argue that her employment contract was violated by her HR managers blatant disregard for her safety and wellbeing * CASE EXAMPLE: Disotell v. Kraft Canada (2010) * In this case employers were aware of the harassment * Disotell made complaints and sometimes the supervisors were even witness to months of sexually inappropriate comments and derogatory remarks * Complaints were inadequately investigated * Judge decided by allowing the harassment to continue Kraft was indeed guilty of breaching the employment contract, and thereby constructively dismissing Disotell. * Kraft ordered to pay 12 months’ notice to Disotell

* Contract and tort law can be used in tandem * CASE EXAMPLE: Boucher v. Walmart (2014) * Boucher was asked by her manager to tamper with the refrigeration temperature logs to cover up a problem with their units * A pattern of abuse began when Boucher refused to do so * Over several months the manager (Mr. Pinnock) would routinely degrade and embarrass her, often ensuring there was an audience to witness his actions. * Complaints filed by Boucher to higher ups were treated as attempts to undermine her manager * She eventually quit and sued Pinnock for intentional infliction of nervous shock (Tort), and Walmart for constructive dismissal (Contract) * Judge found Walmart did not supply a workplace free of harassment, and Pinnock intentionally caused her a great deal of distress * Damages were very high ($1.4M initially) but after appeals amounted to $400,000 * Walmart was vicariously liable for Pinnock and paid the damages in full * Pinnock continues to be employed by Walmart while Boucher is finding it incredibly difficult to find work since her case made headlines. She is being labelled as a “difficult employee”.

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Workplace bullying in Ontario: A critique of the current legal framework After reviewing the legislation and jurisprudence there is sufficient legislation in place to protect those who are bullied. The current system seems to have developed fair and objective investigation techniques (i.e. reasonable person test, test for intentional infliction of nervous shock, reasonable foreseeability of harm).

Although the laws are seemingly fair in assessing whether this negative pattern of behaviour has been committed, they do not address bullying specifically and instead refer to these acts under the umbrella of workplace violence and harassment. Failing to explicitly name and outline prescribed duties of employers in relation to bullying undermines its significance. Relative to sexual harassment and workplace violence, cases of bullying are perceived as less severe but failing to expressly identify it as prohibited within the law only propagates this idea and is the reason why bullying is more widespread than other forms of harassment. This perception allows bullying to go undetected or ignored within organizations permitting the consequences to escalate.

Ontario should follow the lead of British Columbia with regard to their approach to bullying. WorkSafeBC has developed policies and resources related to workplace bullying and harassment. Policy D3-115-2 within the OHS legislation in BC (Workers Compensation Act) was issued on November 1, 2013. As a supplement to the general duties of employers, it clearly defines bullying and harassment and provides steps to address it. Steps include developing a specific policy statement, developing and implementing procedures for how the employer will deal with incidents or complaints, how investigations will be conducted, how follow-ups to the investigation will be conducted and the record keeping requirements

This is very similar to what Ontario has in place regarding harassment and violence under the OHSA but has clear references to bullying. WorkSafeBC also provides resources to educate workers and promote prevention. The following should be added to OHS legislation regarding bullying at work: * The expanded duties of employers should include a specific duty that protects employees from reprisal for voicing concerns over bullying in the office * The duties of workers should also be expanded to * prohibit these types of behaviours and, * encourage bystanders to report behaviour that they believe to be bullying

Finally, the outcomes of previous workplace bullying cases have been somewhat dissatisfying with regard to the damages that actual perpetrators are liable for. Employers are typically held vicariously liable for the behaviour of employees at work in such cases. This is important because it places a great deal of responsibility on employers to actively prevent and take action in response to bullying, however the bullies seem to avoid serious repercussions. For example in Disotell v. Kraft Canada the 16 year employee, who was quite severely bullied only received 12 months’ notice. Although Canadian courts tend not to award significant punitive damages we believe that such punishments of bullies would help to eviscerate this pattern of behaviour. In Boucher v. Walmart, the firm was held solely liable while the bully maintained his management position. Something is not right with the justice system when the aggressor is left better off than the victim post-trial. The public nature of the case labelled Boucher as ‘insubordinate’ and has prevented her from finding gainful employment elsewhere. The damages do not sufficiently counteract her inability to find comparable work. To remedy this issue moving forward, the courts should maintain the anonymity of the claimant in such cases. Better yet, the Federal government should amend the Canadian Human Rights Act to include a new prohibited ground, forbidding discrimination against individuals that have brought legal action against employers in the past. This may be considered a stretch but it would surely help to minimize the punishment that many victims endure after seeking legal remediation in cases of harassment or bullying.
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Consequences of bullying for the workplace
Bullying creates an unhealthy working environment that no person should have to endure. Those subject to workplace bullying often suffer from a variety of symptoms both physical and psychological such as panic attacks, insomnia and high levels of stress.

The organization may also face: * Increased absenteeism * Increased turnover * Increased stress * toxic corporate culture * Increased costs for employee assistance programs (EAPs), recruitment, etc. * Increased risk for accidents / incidents * Decreased productivity and motivation * Decreased morale * Reduced corporate image (poor PR) and lowered consumer confidence * If the situation gets to court, it will ruin the company’s reputation and potentially cost them a lot of money * Creates disruption within the workplace, especially among proximal employees or departments * Diminished trust that workers have in the system and policies of the workplace due to employer inaction and perceived unfairness

Overall, these outcomes combine to have an enormously negative effect on an organization. Increased absenteeism costs money due to lost production. Higher turnover rates increase training and recruitment costs. It is also reasonable to believe that bullied workers may have trouble concentrating and making decisions, resulting in lower productivity. This can be brought on by a loss of motivation, stress and subsequent physical health problems. A great deal of time is spent trying to avoid the bully, defending themselves, dwelling on the situation and planning how to deal with the issue. Bullied employees also show less commitment to the organization. Another major consequence is the organizations reputation. When publicized, bullying might be perceived as being connected to the firm’s culture which results in a poor view of the organization as a whole. This could negatively affect company performance.
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How this will affect our HR careers moving forward?
Since bullying legislation is in its infancy in Canada, HR Professionals will have to be prepared to stay up-to-date with contemporary anti-bullying laws as they are developed. As the legislation continues to evolve, HR professionals will be required to alter their perspectives and learn more about the ways in which Federal and Provincial governments choose to approach this specific issue in the workplace. In the meantime HR professionals should combat the issue of bullying by forming independent policies and procedures around bullying in the workplace to account for gaps within current legislation. For example, HR professionals should be well educated on differences between bullying and harassment, and should be able to identify a pattern of bullying when it occurs, investigate thoroughly, respond objectively, maintain adequate records, and adjust policies when necessary. A proper training and development program among employees that promotes education and implementation of anti-bullying policies in the workplace should be developed. Additionally, HR professionals in Ontario should be trained to report all incidents of bullying in accordance with the procedures required by the Occupational Health and Safety Act and the Human Rights Code. This will eventually help with the development of further bullying legislation in Canada. If HR professionals make a commitment to learn more about bullying, educate employees through training and development, and report all incidents of bullying to the necessary governmental institutions, the current legislation should continue to grow and become more effective in the prevention of bullying at work.
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Appendix
(1) Practical Example

Once upon a time at a large workplace in Ontario there was a woman named Perna and a man named Anthony. All was well until one day Perna wore a new coat to work. Anthony, a manager at the firm, was recently made aware that Perna, a relatively new hire, was being groomed for a position which his good friend Mike, a seasoned employee, coveted. Anthony had a snarky comment regarding the new coat and everyone laughed. Perna laughed awkwardly along with them but was devastated internally. She went home and wept into her stuffed cat pillow. The next day, she wore a different coat, being too distraught to ever don the previous one ever again. Anthony found a joke in this one too, and again Miss Mittens the pillow was wet with tears. Again Perna felt forced to buy another new coat and once again Anthony found amusement in it. Perna met with Saralyn, the HR Manager, and voiced her complaints. She told her to suck-it-up, to deal with Anthony directly and to stop letting him bother her. Perna did try and deal with Anthony. She even came up with a few insults of her own but she was no match for Anthony’s ferocious wit. Her attempt to get even seemed to aggravate Anthony more and he proceeded to delegate an inordinate amount of busy work to Perna, including filing and cleaning the break room which impeded her ability to complete her daily tasks. Perna became unable to deal with the idea of facing her tormentor every day. She begins to feel a greater connection with Miss Mittens than with anyone at work. Eventually her boss calls her in about the absences and unfinished tasks. Perna, on her last nerve breaks and starts yelling at the manager who suggests that she take a leave of absence. Perna agrees but never returns to work. All humor aside, this is a clear case of bullying at work. The outcomes of such behaviour are incredibly serious. Most people would find Anthony’s behaviour to be inappropriate and the direct cause of Perna’s mental/emotional harm. To understand what legislation is in place to protect Perna and help her in seeking remediation, refer to the report section titled ‘Framing workplace bullying within the law: Is bullying covered under Statutory or Common Law?’.

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Works Cited
40% of Canadians bullied at work, expert says. CBC News, Dec 2011. Web. 11 March 2015. <http://www.cbc.ca/news/canada/windsor/40-of-canadians-bullied-at-work-expert-says-1.987450>

About HRTO. The Human Rights Tribunal of Ontario, 2010. Web. 16 March 2015. <http://www.hrto.ca/hrto/index.php?q=en/node/1>

Bullying and Harassment. WorkSafeBC, 2015. Web. 16 March 2015. <http://www2.worksafebc.com/Topics/BullyingAndHarassment/Home.asp>

Discussion: Bullied at work? Know your legal rights. The Globe and Mail, Aug 2012. Web. 11 March 2015. <http://www.theglobeandmail.com/report-on-business/careers/career-advice/life-at-work/bullied-at-work-know-your-legal-rights/article4458799/>

Dizgun, Leslie. Torts in the workplace – After Piresferreira and Bill 168. Himelfarb Proszansky Barristers and Solicitors. Web. 13 March 2015. <http://www.himprolaw.com/blog/85-page/160-torts-in-the-workplace-after-piresferreira-and-bill-168>

Workplace Bullying in Ontario. Robinson Heeney LLP, Jan. 2014. Web. 11 March 2015. <http://www.robinsonheeney.com/wp-content/uploads/2014/01/Robinson-Heeney-Workplace-Bullying-Article-FINALDSA.pdf>

OSH Answers Factsheet: Bullying in the Workplace. Canadian Centre for Occupational Health and Safety, May 2014. Web. 11 March 2015. <http://www.ccohs.ca/oshanswers/psychosocial/bullying.html>

Part III: Duties of Employers and Other Persons. Ontario Ministry of Labour, March 2015. Web. 11 March 2015. <http://www.labour.gov.on.ca/english/hs/pubs/ohsa/ohsag_part3.php>

Roumeliotis, Ionna. Workplace bullying a major concern in Canada, says woman who sued Walmart. CBC News, June 2014. Web. 11 March 2015. <http://www.cbc.ca/news/business/workplace-bullying-a-major-concern-in-canada-says-woman-who-sued-wal-mart-1.2673109>

Workplace Mental Health Promotion: Harassment, Violence, Bullying, and Mobbing. Canadian Mental Health Association, Ontario, 2015. Web. 11 March 2015. <http://wmhp.cmhaontario.ca/workplace-mental-health-core-concepts-issues/issues-in-the-workplace-that-affect-employee-mental-health/harassment-violence-bullying-and-mobbing >

Workers’ Compensation Board of BC. Toward a Respectful Workplace: A handbook on preventing and addressing workplace bullying and harassment. WorkSafeBC, 2013. Web. 16 March 2015. <http://www2.worksafebc.com/pdfs/Bullying/BK137.pdf>

Workplace Violence and Workplace Harassment. Ontario Ministry of Labour, Nov 2013. Web. 11 March 2015. <http://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_workplaceviolence.php>

What remedies are available to me at the HRTO?. Human Rights Legal Support Centre. Web. 16 March 2015 <http://www.hrlsc.on.ca/en/publications-resources/information-sheets-guides/what-remedies-are-available-me-hrto>

Zavitz, Katie A. Canada: Ontario Court of Appeal Closes Door on Claims of “Negligent Infliction of Mental Suffering”. Borden Ladner Gervais LLP, Nov 2010. Web. 16 March 2015. <http://www.mondaq.com/canada/x/114002/employment+litigation+tribunals/Ontario+Court+of+Appeal+Closes+Door+on+Claims+of+Negligent+Infliction+of+Mental+Suffering>

Jurisprudence (Cases)

Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), 11 March 2015. <http://canlii.ca/t/g6xvb>

Disotell v. Kraft Canada Inc., 2010 ONSC 3793 (CanLII), 11 March 2015. <http://canlii.ca/t/2c0nm>

Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), 13 March 2015. <http://canlii.ca/t/29x30>

Mustapha v. Culligan of Canada Ltd., 2006 CanLII 41807 (ON CA), 13 March 2015. <http://canlii.ca/t/1q5hp>

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, 13 March 2015. <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1557/index.do>

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