Friday, November 20, 2009

Workplace Harassment and Bill 168 - A New Remedy for an Old Problem

Workplace bullying is a serious problem for thousands of Canadians at work. It can degrade one’s self worth and create serious health problems for workers and their families.

There has often been very little that could be done to stop the workplace bully in his or her tracks. But, in Ontario, there is now hope around the corner.

This month, Ontario’s Standing Committee on Social Policy will wrap up public hearings regarding Ontario's Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill, which will place heavier obligations on employers to prevent and manage workplace violence and harassment, has already been given second reading in the Legislature, and will likely become law sometime next year.

The new law defines "workplace harassment" and "workplace violence" in the following manner:

"Workplace harassment" means 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.

"Workplace violence" means:

a. the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker,

b. an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.

This type of legislative initiative should be welcomed. Many employees live with the often horrific reality that the workplace can be a war zone from which there is no shelter.

Researchers Charlotte Rayner, Helge Hoel and Cary L. Cooper have contributed to our understanding of what may constitute workplace bullying.

In their book, Workplace Bullying: What We Know, Who is to Blame, and What We Can Do, they suggest that bullying may include:

  • Threat to professional status (e.g., damaging the person's reputation, humiliating the person in public or accusing him or her of lack of effort).
  • Threat to personal standing (e.g., calling the person names; insulting, teasing or intimidating him or her; or devaluing the person based on age).
  • Isolation (e.g., preventing access to opportunities, deliberately withholding important information or isolating the person physically or socially).
  • Overwork (e.g., imposing undue pressure to produce work, setting impossible deadlines or making consistent and unnecessary disruptions).
  • Destabilization (e.g., failing to give credit where it is due, assigning meaningless tasks, removing responsibility or setting the person up for failure).
Certainly the costs of workplace violence and harassment can be profound for victims. Bill 168 is a welcome step in the right direction.

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Tort Remedies for Harassment

The Ontario Superior Court's December 2009 ruling in Piresferreira v. Ayotte and Bell Mobility Inc., [2008] O.J. No. 518, provides a dramatic example of the civil remedies available in Ontario in extreme cases of harassment and bullying.

In that case, an employee was abused by a manager who frequently yelled and swore at her, and berated her in front of other employees. The culminating incident occurred when the manager became frustrated with the employee and pushed her aside, and the employee (who was 60 years old) lost her balance and fell back against a filing cabinet. Soon thereafter, the employee was presented with a performance improvement plan prepared by the manager. The employee was diagnosed with post-traumatic stress disorder, and left her employment permanently.

The court awarded the employee $45,000 in damages for assault, battery, intentional and negligent infliction of emotional distress, mental suffering and psycho-traumatic disability; $450,832 for loss of past and future income; and $5,123 for special damages.

Garry has also addressed this ruling in a previous post.

- Stephen Ellis, Toronto

Stephen Ellis is a Toronto lawyer practicing in association with Wise Law Office, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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