Psychological harassment in the workplace

Much has been written in our law about sexual harassment in the workplace but there is scant authority on psychological harassment which embraces elements of hostility and persistence.

Section 21 of the Equality and Prevention of Unfair Discrimination Act directs that the court must hold an inquiry to determine whether unfair discrimination, hate speech or harassment, as the case may be, has taken place, as alleged.

After holding an inquiry, the court may make an appropriate order (which has the effect of an order made in a civil action) including:

• an order making a settlement between the parties to the proceedings an order of court;
• an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question;
• an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;
• an order for the implementation of special measures to address the unfair discrimination, hate speech or harassment in question;
• an order that an unconditional apology be made;

A recent article by a top-tier Canadian law firm on the subject of psychological harassment seeks to clarify whether or not unfair harassment has taken place:

Québec’s Psychological Harassment Legislation: Defining Its Scope and Application

24 October 2006
Article by Valerie Dufour of Borden Ladner Gervais LLP

On June 1, 2004, certain amendments to Québec’s Act Respecting Labour Standards (“LSA”) came into effect, thereby providing a statutory recourse against psychological harassment in the workplace.¹ A recent arbitral decision has provided some much-needed guidance with respect to the legislation’s scope and application and will hopefully serve to ensure that it is appropriately applied.

Whereas recourse for harassment was formerly only available under the Québec Charter of Human Rights and Freedoms in cases of discrimination based on fundamental rights, or under the applicable provisions of collective agreements, Québec workers appear to have embraced the new remedy against psychological harassment as the solution for many common workplace conflicts.

In fact, the statistics on psychological harassment complaints instituted over the last two years show a rather surprising number of complaints, which may be indicative of employees using the psychological harassment recourse as a catch-all for trivial or inappropriate employee complaints or grievances, and even to contest disciplinary measures. The record of complaints filed with theCommission des normes du travail (Québec’s Labour Standards Board) attests to this: nearly 5,000 complaints have been filed with the Commission since 2004, with only 320 being referred to the Commission des relations du travail (Québec’s Labour Relations Board) for a hearing and no more than fifteen actual decisions relating to psychological harassment being rendered to date.²

Articles 81.18 to 81.20 of the LSA establish the regime for psychological harassment in Québec. Specifically, article 81.18 of the LSA stipulates what behavior constitutes psychological harassment. It provides:

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 result in a harmful work environment for the employee.

A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.³

While the definition leaves room for much interpretation, the situation is further complicated by the wide range of individual personalities in the workplace which make a uniform application of the notion of psychological harassment even more difficult. That being said, the adjudication of disputes demands that some form of coherent standard be applied by labour commissioners and arbitrators.

Fortunately, a recent arbitral decision not only provides guidance on the application of the psychological harassment regime in Québec, but more importantly clearly delineates behaviour that does not constitute psychological harassment.⁴

That case dealt with a dispute between a nurse and her supervisor that ostensibly arose after the merger of two hospitals. The facts reveal that, from June 1998 to March 2000, the nurse proved to be an intransigent and recalcitrant team member and eschewed attempts by her supervisor to address the personnel conflicts arising from her behaviour. The prickly relationship between the two culminated in a performance evaluation of the nurse by her supervisor that addressed the nurse’s unacceptable attitude, following which the nurse accused her supervisor of psychological harassment and filed a grievance through her union.

The arbitrator’s decision suggests a coherent approach to the legislative definition of psychological harassment and identifies behaviour that does not fall under that rubric:

1.      Difficult social relations: The goal of the law is to reprimand intolerable conduct and not simply to chastise bad taste. The expression of contentious political, sexual, or racial opinions, for example, does not generally constitute psychological harassment. While it could violate a person’s dignity, it lacks the elements of hostility and persistence to qualify as harassment. Furthermore, the workplace can be the source of numerous frictions, disagreements and unkind comments which do not constitute psychological harassment where the incidents occur infrequently and are followed-up with explanations or apologies.

2.      Conflict situations: The everyday tensions and stress arising from workplace conflicts do not automatically qualify as psychological harassment given that conflicts are most often symptomatic of the clash of individual wills geared towards the same goal. Conversely, psychological harassment occurs when one party repeatedly adopts a dominant attitude towards the other in a hostile manner which affects their dignity or integrity. Therefore, the source and motivation behind workplace grievances needs to be closely examined before classifying given behaviour as psychological harassment.

3.      Victimization: The conflicts arising from victimization highlight some of the salient elements of psychological harassment. When one party identifies a tormentor, that party remains passive in their role of victim without seeking redress, even if there is a form of redress that would be satisfactory for them. This allows them to blame everything on their tormentor without questioning their own behaviour. Psychological harassment requires that the harassed party act in a reasonable and diligent manner by taking active steps to rectify the situation.

4.      Paranoid personalities: Paranoid personalities attempt to find credible support for their fabricated notions of injustice by citing supposed violations of their dignity. These people are absolutely convinced of their persecution and will attempt to perpetuate the scenario. Victims of psychological harassment exhibit the exact opposite approach. Their initial attitude is one of caution and shame; they question their own behaviour and they try to preserve their dignity by delaying the filing of a grievance and hoping the problem is resolved outside the administrative process.

5.      The employee/employer relationship: Arbitrator Hamelin finally emphasizes that one must bear in mind the inherent link of subordination between the employee and the employer. When an employee signs an employment contract, he accepts the employer’s prerogative to direct his work in the manner the employer sees fit. This relationship carries rights and obligations on both sides. For its part, the employer must, according to article 2087 of the Civil Code of Québec, “take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee.”⁵ This includes ensuring the employee is not a victim of harassment. This mutuality of rights and obligations is designed to maximize the productivity of the relationship and minimize the instances of untoward behaviour.

These situations show that a one-sided evaluation of harassing behaviour is misguided. One must account for the entirety of the relationship to come to an informed conclusion about the behaviour and its effects.

Ultimately, the test a tribunal must adopt is both objective and subjective. Firstly, one must consider the particular characteristics of the employee. For example, a member of a visible minority may react differently to certain conduct than another person. That is the subjective part of the test. The tribunal must then ask itself whether, given the nature of the conduct, it is reasonable for the employee to feel harassed by it. That is the objective part of the test.

One can only speculate on the reasons for the high number of complaints to date. It is worth noting that many psychological harassment grievances occur when a new supervisor is introduced into the workplace, but this is surely not the sole explanation for the considerable number of psychological harassment complaints filed in Québec since the recourse became available.

Arbitrator Hamelin’s decision and the precedent it establishes will undoubtedly reduce the ambiguity surrounding the legislation’s scope and application, and thereby reducing the number of frivolous or unfounded psychological harassment claims being filed with the Labour Standards Board.

Footnotes

^{1 Act Respecting Labour Standards, R.S.Q. 2002 c. 80, s. 47.}

^{2 These statistics do not include the numerous grievances deposited under collective agreements, which are deemed to contain the psychological harassment provisions set out in the LSA.}

^{3 Ibid. at sect. 81.18.}

^{4 Centre hospitalier régional de Trois-Riviéres (Pavillon St-Joseph) v. Syndicat des infirmières et infirmiers de Trois-Rivières (2006), No. 2004-9453 (Hamelin).}

^{5 Civil Code of Québec, R.S.Q., c. C-1991, a. 2087.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.