Canada, Workplace Bullies, and The Law

Wal Mart Canada CorpHere’s an article from the Canadian Workplace Legal Post which is a reminder to everyone involved in the U.S. workplace bullying movement that a variety of solutions can, and should, be embraced and supported. Canada has been  strengthening their Workers Comp and OSHA regulations to be effective tools that can protect their workers:

Big Jury Award Arising from Workplace Bullying

Appropriate conduct in the workplace is ever changing. The most recent shift concerns bullying in the workplace, and it is becoming increasingly clear that the stern, often aggressive management styles of yesteryear may no longer be appropriate in the Canadian workplace. In light of this change in attitudes, employers must take note or suffer what may be very serious consequences, which are perhaps no better evidenced than the recent jury ruling by the Ontario High Court of Justice, which awarded 1.46 million dollars to an employee who claimed her manager bullied her.

In that case, the successful employee quit her job at Walmart in 2009 after 10 years of service. She then sued her employer and her former manager citing constructive dismissal, intentional infliction of mental suffering, discrimination, sexual harassment and assault. According to the reports on the case, the alleged mistreatment by her manager began six months earlier when she refused to comply with his direction to falsify cleaning and temperature logs in the food department. Subsequently, her manager engaged in a variety of forms of abusive behaviour including swearing at her, calling her an “idiot” and forcing her to audibly count in front of other employees to showcase what he perceived to be her limited mathematical abilities. He also changed her shift to an overnight shift.

The Plaintiff led evidence that she had repeatedly complained of her mistreatment to senior management at Walmart and a three person management panel was ultimately convened to consider her complaints. In the end, Walmart chose not to act on her allegations. Given that the jury awarded $1.2 million against Walmart directly (the other $250,000 in damages is to be paid by the manager), it is clear the jury disagreed with that approach. As expected, it is reported that Walmart is appealing the decision.

Aside from the staggering quantum of damages, the case is also notable because of arguments made concerning the amendments to Ontario’s Occupational Health and Safety Act, which provided new obligations for employers concerning workplace harassment (of which bullying is a form). Although these provisions were not designed to provide for civil liability, the social policy underlying these amendments was apparently used by the Plaintiff’s lawyer in the Walmart case to support arguments about what is (or is not) appropriate behaviour in the workplace. As of July 1, 2102, British Columbia joined a number of other provinces by addressing workplace stressors such as bullying and harassment in its workers’ compensation legislation. The legislated trend towards more protections for employees regarding bullying and harassment is expected to continue. These new legislative provisions, like the human rights protections that came before them, can and likely will be used by Plaintiff’s counsel to argue that employers have failed to take appropriate steps to prevent or stop ongoing bullying or other forms of harassment in the workplace. Readers in B.C. can find some comfort from a recent Court of Appeal decision that Marino Sveinson discussed in a recent post: Jurisdiction of Mental Stress Claims Arising Out of the Workplace. However, precisely how these areas of law will intersect has not yet been fully resolved by our courts.

Given the consequences for failing to properly address bullying in the workplace, employers must take steps to both proactively address the risks associated with workplace bullying while also reacting appropriately to complaints as they arise. To start, employers may consider providing training on appropriate workplace conduct, including training specifically on the issue of bullying and harassment. Further, employers should inform their employees that bullying will not be tolerated in the workplace and that discipline up to termination of employment could be the penalty for such misconduct. Employers should provide a means for employees to report bullying issues or complaints, and of course employers must investigate bullying claims and intervene where appropriate. Preferably, this should all be enshrined in a formal written workplace policy (which may be required depending on jurisdiction). Finally, given the potential liability for employers, legal advice is recommended when creating respectful workplace policies and when handling harassment complaints.

Authored by Ryan Copeland
Sources : 2X The Windsor Star by Craig Pearson ; E2RSolutions

Posted to Canadian Workplace by Marino Sveinson

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