Originally appeared in McMillan’s employment and labour bulletin.
Author: Lai-King Hum
November 2011

Seven years ago Quebec made headlines with its social agenda on workplace bullying. On June 1, 2004, Quebec’s Act respecting Labour Standards (“ALS”) was amended to add new employment standards regarding psychological harassment. Its imposition or employers of obligations regarding the prevention of workplace bullying set new employment standards in North America. The new standards imposed upon employers an explicit obligation to take all reasonable steps to provide a workplace free of harassment, under threat of a direct recourse by an affected employee for damages.

With recourse to free legal representation for complaining employees, the amendments initially instilled fear in employers that the deck had been stacked in favour of employees who would be tempted to complain about every kind of workplace discord.

Did these fears materialize over the course of the last seven years? It appears not.

Quebec has an employee population of about 3,000,000 that is covered by the ALS. As of June 2009, the number of psychological harassment complaints received by the Commission des normes du travail (“CNT” or Quebec Labour Standards Board, which receives all complaints regarding the ALS) surpassed 10,000, with an average of approximately 2,000 complaints made per year. Of these complaints, many of which also included other grounds of complaint, such as disputing a dismissal of employment, about a third were resolved at the CNT through mediation. Less than 1% were transferred from the CNT to the Commission des relations du travail (“CRT” or Quebec’s Labour Relations Board) for a hearing. Of those referred to the CRT, about 80% were resolved before any hearing. Between June 1, 2004 and March 31, 2010, the CRT rendered only 108 decisions. Only 36 decisions found that the complainant had indeed been psychologically harassed.

Between April 1, 2010 and July 2011, the date of this article, the Commissioner has rendered a further approximately 23 decisions (7 of which found that the employee had been harassed).

Hence, a review actually shows that the amendments to the ALS have not opened the floodgates to employer liability for harassment in the workplace. Indeed, belying the province’s reputation amongst national and international employers as an “employee friendly” jurisdiction, the CRT has demonstrated surprising reasonableness in determining the parameters of what constitutes “psychological harassment”. The burden is firmly put on the alleged victim to show by a preponderance of evidence that there has been psychological harassment. Even where psychological harassment has been found, the CRT has also been reasonable in only finding an employer liable if reasonable measures were not taken to stop the workplace harassment from continuing.

The ALS defines psychological harassment 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 results in a harmful work environment for the employee.” Additionally, “a single incidence of such behaviour that has a lasting harmful effect may also constitute psychological harassment.”

A preliminary issue that often arises is whether the complaint is prescribed by article 123.7 ALS, which provides that “[a]ny complaint concerning psychological harassment must be filed within 90 days of the last incidence of the offending behaviour.” In considering the “last incidence”, the CRT considers the global context in which harassment is alleged to have occurred and not whether the last incident would, in isolation, be considered to be psychological harassment. The victim of psychological harassment may also invoke incidences of harassment that occur after the filing of the complaint.

A two-step analysis is made:

• (a) First, has there been psychological harassment, as defined in article 81.18 ALS?
• (b) If there has been, has the employer complied with its obligation under article 81.19 ALS and used all reasonable means to prevent psychological harassment in the workplace, once the harassment came to the attention of the employer?

Were the CRT to answer both of these questions positively, by virtue of article 123.15 ALS, the CRT has broad powers to fashion any remedy that is “fair and reasonable, taking into account all the circumstances of the matter”. As such, the damages to and other relief awarded against an employer that has not been compliant can be quite significant. The broad powers include, notably, orders to: (a) reinstate an employee; (b) pay the employee an indemnity up to the amount of wages lost; (c) take reasonable measures to stop the harassment; (d) pay punitive and moral damages; (e) pay an indemnity for loss of employment; (f) pay for any psychological support required for a reasonable period of time; and (g) modify the disciplinary record of the victim of psychological harassment.

Psychological harassment is assessed on an objective standard, based on the point of view of a reasonable person placed in the same circumstances, and not on what may be the personal beliefs or paranoia of the alleged victim. Hence, workplace discord or collegial ribaldry would not generally be seen as psychological harassment. Incidents involving ordinary work stresses, or the reasonable management of the business (including managing disciplinary measures, employee performance, and absenteeism), or organizational changes, would also be rejected. It has also been held that managers or supervisors engaging in inappropriate conduct because of exasperation or impatience have not crossed the line into psychological harassment.

CRT decisions confirm that even where an employee is found to have been harassed at work, if the employer is able to establish that it took all reasonable means to deal with the situation, then the employee will have no relief or compensation from the CRT against the employer. Other remedies, outside of the ALS, may be available however against the harasser directly.

The Quebec experience might be relevant to the several other provinces have since followed suit. In 2007, Saskatchewan was the first of the common law provinces to legislate protection against psychological harassment, through an amendment in its occupational health and safety legislation. Manitoba, Ontario and British Columbia have since similarly followed suit. Similar changes are contemplated in Alberta and federally under the occupational health and safety section of the Canada Labour Code.

If the experience of Quebec over the last seven years is any indication, employers’ fears can be allayed. While there is need to be vigilant to potential liabilities for condoning the “bully” in the workplace, employers are otherwise able to operate their business, and not fear exacting appropriate discipline for recalcitrant or underperforming employees.

Crossing the line however into abuse of management rights can lead to liability. For instance, in Bernard v. Olympus NDT Canada Inc., 2010 QCCRT 461, the Commissioner found that one of the employer’s general managers had been psychologically harassed by other members of management. They oversaw and controlled the ambit of his authority to such a degree that it exposed him to diminished respect from his subordinates. His complaints fell on deaf ears, even after he took sick leave. The victim was then terminated from his employment presumably for failure to: (i) adhere to strict management requirements to follow company policies; (ii) establish good communications with other employees and with management; and (iii) account for allegedly illegal and questionable expenses. The general manager’s psychological harassment complaint was combined with one for termination without just and sufficient cause. The CRT found that the victim had suffered psychological harassment, that the employer had failed to stop the harassment, and also that the employer had dismissed him without just and sufficient cause. The employer was ordered not only to reinstate the employee, but also to pay an indemnity equal to the wages and other benefits lost from the date of dismissal to the date of the decision (about 11 months).

It is important to stress that employers are not legally obliged to guarantee that there will be no psychological harassment in the workplace. The overall stated objective of the legislation is to prevent psychological harassment, and where there is psychological harassment, to put a stop to it. Failure to do so entails serious consequences to the employer. The ALS requires that the employer act with prudence and diligence, and take all reasonable measures to both protect the workplace from any harassment and to quickly put an end to any existing workplace harassment.

Based on our review of the relevant CRT decisions, employers doing business in Quebec should consider the following in managing the risks of a psychological harassment complaint:

• Ensure that anti-harassment policies include “bullying” conduct as defined in the ALS, and that such policies apply in all circumstances, regardless of the status of the employee, or whether there is any imbalance of power between the alleged harasser and the victim;
• Ensure that policies are made available to all employees, and that these policies spell out clearly the rights and obligations of all employees, including senior management, in the prevention of workplace harassment;
• Include in the policies the legislative definition for psychological harassment, and provide some examples of what constitutes psychological harassment and what does not;
• Promulgate a zero-tolerance policy towards “bullying” behaviour;
• Have in place conflict resolution mechanisms to manage complaints, publicize the procedure to all employees, and ensure that the procedures are followed whenever a complaint arises;
• Provide access to information and materials regarding psychological harassment, including training for both employees and managers / supervisors;
• Be stringent about employee conduct and investigate promptly and as thoroughly as necessary whenever there is a complaint;
• Based on the conclusions of the investigation, implement whatever reasonable measures are necessary to curtail any further psychological harassment from occurring; and
• Remember the distinction between normal management rights and abuse of that right.

Employees considering a complaint would do well to first assess whether the situation is merely a case of workplace conflict as opposed to psychological harassment, or whether it is merely a case of the employer reasonably exercising its right of management. Further, if the employer has been scrupulous in assisting the employee and took all reasonable measures to stop the harassment, then the employee might look elsewhere for recourse.

^1. Information in this paragraph comes from “Workplace Violence and Psychological Harassment: An Overview of the Quebec Experience”, Anick Chainey, November 26 & 27, 2010, presented at CBA Annual Conference organized by National Administrative Law, Labour and Employment Law, and Privacy and Access Sections. See also “Pour en connaître davantage sur les personnes ayant porté plainte pour harcèlement psychologique à la Commission des normes du travail”, Carole Dupéré, in Regards sur le travail (vol. 5, no. 2), du Ministère du Travail.

2. Based on a review of decisions found on the CRT website

^3. Khessib c. C.L.B. Uniforms Inc., 2011 QCCRT 0111.