Psychological Harassment and Managerial Rights

19 March 2008

Article by Simon-Pierre Hebert of McCarthy Tétrault LLP

On June 1, 2004, the Québec legislature amended the Act respecting labour standards to prohibit psychological harassment. Since then, company managers have been wary of exercising their managerial rights, for fear of being accused of psychological harassment. Much of this wariness stems from a lack of clear guidance as to what exactly constitutes psychological harassment. Because of the delays inherent in the judicial process, only a few decisions on psychological harassment were rendered before 2007. However, now that three years have elapsed since the legislation was amended, we can identify certain elements that can be used to distinguish psychological harassment from an employer’s managerial rights.

Definition of Psychological Harassment

Psychological harassment is defined in the Act as “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 result in a harmful work environment for the employee.” The Act also states that “a single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.”

Statistics

In a recent press release, the Commission des normes du travail noted that 97 per cent of psychological harassment complaints were settled during the Commission’s complaint processing procedure. Consequently, very few complaints were referred to the Commission des relations du travail for a formal hearing.

Time-Consuming Complaints

Although few complaints reach the hearing stage, employers must devote significant time and resources to handling most complaints. For example, employers may need to:

Employers who have experienced this process can confirm that these complaints are often complex. It may take a great deal of time and skill for a good work environment to be restored within an organization after such a complaint has been filed.

Managerial Rights versus Psychological Harassment

As indicated above, some employers have been concerned that the normal exercise of their managerial rights may lead to claims of psychological harassment. Case law has now made it clear that employers do have the right to manage their businesses, subject to some limitations:

The management power of the employer has not disappeared with the coming into force of the provision on psychological harassment. It must be exercised according to clearly defined rules. But when properly exercised, it cannot be described as psychological harassment.

Similarly, from another decision:

The Commission considers that the facts in this matter occur in a context of administrative follow-up. The employer, having detected certain shortcomings in the complainant, undertook a process intended not only to point out these shortcomings to the employee but also to provide the support necessary to correct them. In doing so, the employer is exercising his managerial right.

Thus, it is clear that the provisions regarding psychological harassment do not trump managerial rights. However, the new provisions do put some limitations on these rights. Understanding these limitations will help employers limit the risk of complaints and improve their work environments.

Lessons for Employers

Based on existing case law, here are some tips on how to prevent the exercise of managerial rights from turning into complaints of psychological harassment:

1.      When criticizing an employee’s performance, provide the support necessary to correct the shortcomings.

2.      Make sure the way you act toward an employee who engages in an employment infraction does not differ significantly from how you act toward other employees who engage in similar infractions.

3.      When handling performance issues, simply require the employee to provide the same work performance as expected from other employees.

4.      When commenting on performance, ensure your comments are legitimate and respectful. Do not make comments in a disdainful way that humiliates the employee.

5.      Make managers aware of what is and is not permissible, as they are the main targets of psychological harassment complaints. Training managers is an investment that will reap many benefits in labour relations, productivity and other areas.