Quebec
Legislation Against Psychological Harassment
has Nation-Wide Implications April
2005, by P.A. Neena Gupta
On June 1, 2004, Quebec became
the first North American jurisdiction to include protection
against psychological harassment of employees in its
Act respecting Labour Standards. The Quebec legislation
signals a changing legislative and judicial attitude
to abuse in the workplace. The common-law courts are
slowly becoming more sensitive to the difficulties
employees face in the workplace in relation to personal
and psychological harassment. Employers, managers,
supervisors and employees are facing new obligations
and responsibilities in connection with the quality
of work environments and workplace interactions. These
new responsibilities arise out of a growing preoccupation
by the courts with defining and enforcing a kinder,
gentler workplace.
On June 1, 2004, Quebec became
the first North American jurisdiction to include protection
against psychological harassment of employees in its
Act respecting Labour Standards. Psychological
harassment is defined as:
"Any vexatious behaviour in
the form of repeated and hostile or unwanted conduct,
verbal comments, actions or gestures, that affect
an employee's dignity or psychological integrity and
that results 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."
More information regarding the
Quebec legislation can be found on the government
website at the Commission
des normes du travail.
The Quebec Labour Standards Branch
(Commission des normes du travail) has published
a bulletin on psychological harassment at work. It
lists a broad range of activities that could constitute
a breach of Quebec's labour legislation, including:
- Making rude, degrading or offensive remarks.
- Making gestures that seek to intimidate, engaging
in reprisals.
- Discrediting the person: spreading rumours, ridicule,
calling into question aspects of the person’s
private life, shouting abuse or sexual harassment.
- Belittling the person: forcing them to perform
tasks that are below their station or professional
skills.
- Preventing the person from expressing his or her
thoughts, e.g. yelling, threatening, constant interruption,
and prohibiting the person from speaking to others.
- Isolating or shunning the person by not talking
to them, ignoring their presence, or isolating them
from others.
- Destabilizing the person by making fun of their
beliefs, convictions, tastes or political choices.
As can be seen from the above list,
the Quebec legislation goes far beyond traditional
legislative efforts to combat the problem of workplace
harassment. Other jurisdictions have sought to respond
to workplace harassment only where the harassment
is based on certain specific grounds, such as race,
sex, family status, marital status, religion, etc.
Since the coming into force of
this legislation, there have been some very interesting
arbitral decisions regarding psychological harassment.
A Quebec arbitrator found that a female employee was
psychologically harassed when her supervisor regularly
used profane language and told her that he could force
her to wash toilet bowls if he wanted. In other jurisdictions,
the employee would have had difficulty establishing
harassment on the basis of sex or other protected
ground, as the employer no doubt could have shown
that the treatment was the "norm" for a
rough blue-collar workplace.
In another case, a unionized employee
was humiliated in front of his peers when he was forced
to sweep the floor in front of his colleagues, instead
of attending to his duties as a machinist. The arbitrator
also noted that the President and General Director
had insinuated the employee was not even able to sweep
the floor of the plant without tripping over. Since
machinists occasionally do help clean up, it might
have been difficult to grieve the treatment under
the provisions of the collective bargaining agreement.
The Quebec arbitrator found that the purpose of forcing
the employee to sweep was humiliation. In other parts
of Canada, however, subtle or not-so-subtle efforts
to humiliate an employee would not constitute a breach
of the applicable human rights or labour legislation.
The attempt by these Quebec employers
to justify these types of interactions as being a
legitimate exercise of management authority failed.
It is often difficult for employers, however, to walk
the fine line between giving an employee negative
feedback regarding poor performance, on the one hand,
and psychological harassment, on the other.
An employee may feel that a negative
performance review was unfair, humiliating and distressing.
In Quebec, there is explicit recognition that the
normal exercise of managerial or disciplinary authority
does not constitute psychological harassment. From
a practical perspective however, the onus will clearly
be on the employer to establish that even if the employee
felt distressed, the negative commentary was part
of management's legitimate exercise of the authority
to provide feedback and constructive criticism.
The Quebec Labour Standards Branch
(Commission des Normes du Travail) has also
suggested that unresolved workplace tensions due to
one employee's dissatisfaction with a decision to
promote another could ultimately lead to a complaint
of psychological harassment by the person who received
the promotion. In their Bulletin, they provide the
following common scenario:
Claire and Louise have been
working in the same team for several months. Recently,
Claire was appointed person in charge of a project
to construct a new building, but Louise refuses to
accept this decision. Her behaviour towards Claire
changes, and Louise lets Claire know that she should
have been entrusted with this responsibility. Since
then, Louise limits her collaboration in the project.
Relations between Claire and Louise are tense, and
there are serious communication problems. Louise no
longer talks to Claire. This situation could turn
into harassment if no steps are taken to resolve the
conflict.In short, an employer must defuse workplace
tensions before they escalate and make it unpleasant
or difficult for an employee to perform his or her
duties. In another example, it is suggested that the
workplace rumour mill, if it is allowed to run unchecked,
could become a form of psychological harassment.
These examples illustrate that
the intended scope and reach of the Quebec legislation
is far greater than any other labour legislation in
Canada. There are over 600 pending cases in Quebec
in which a complaint of psychological harassment has
been made.
TOP
What
are the Nation-Wide Implications?
The Quebec legislation signals
a changing legislative and judicial attitude to abuse
in the workplace. Recently, a private member's bill
was introduced to amend the federal Labour Code to
include protections against psychological abuse. While
the private member's bill did not pass, it is clear
that the issue is now on the federal government's
radar screen.
The common-law courts are slowly
becoming more sensitive to the difficulties employees
face in the workplace in relation to personal and
psychological harassment. Employers, managers, supervisors,
employees and members of the workplace communities
are facing new obligations and responsibilities in
connection with the quality of work environments and
workplace interactions. These new responsibilities
arise out of a growing preoccupation by the courts
(and government) with defining and enforcing a kinder,
gentler workplace. The courts are increasingly prescribing
new standards for an acceptable workplace environment
and for acceptable workplace interactions. The concept
of personal harassment and offensive environments
are being legally defined and prohibited. The emerging
priority is a demand for civil and respectful environments
and interactions. Behaviour such as yelling, loss
of temper over minor issues, expressions of opinion
in an obscene manner, offensive, foul and obscene
language, belittling and demeaning remarks or behaviour
is being legally characterized as personal and psychological
harassment and as creating an unacceptable offensive
environment. Such behaviour is construed as falling
below standards of legally acceptable workplace interactions
and conduct.
In the Alberta case of Lloyd
v. Imperial Parking, repeated threats of dismissal
by the supervisor were treated as constructive dismissal
by the court. The Alberta court found that there is
an implied term in every contract of employment that
the employer will "treat the employee with civility,
decency, respect and dignity."[1]
In the case of Stamos v. Annuity
Research & Marketing Services Ltd. in Ontario,
an employee was successful in her claim of constructive
dismissal because her employer failed to reign in
a co-worker. The co-worker was found to have been
verbally abusive and threatening. He even kicked open
a door and refused to go away when asked, until the
police came. The owner tried to resolve the problem
by getting the two employees to work together. The
court found:
"To treat the perpetrator
of abuse and his victim identically is unjust and
unconscionable. The sending of mirror image memoranda
in response to the incident of January 21 [the door-kicking
incident] was the last straw. The plaintiff was quite
entitled to treat the employment relationship as having
been terminated that day.” [2]
TOP
What
Should Employers Do?
On its Labour Standards website,
the Quebec government recommends that employers establish
a procedure for employees to report cases of harassment
(including psychological harassment) and encourages
employers to use external specialized resources where
required. Some employers choose to develop Quebec-only
policies to deal with the specific legislative regime.
While this may meet the legal requirements, it creates
a significant dilemma for national employers. From
a human resources perspective there is no justification
for not protecting all employees from unwarranted
psychological harassment. Nonetheless, the reach of
the Quebec legislation is arguably excessive. Workplace
tensions such as the Claire and Louise scenario described
above, while unfortunate and unproductive, should
not be treated on par with the flagrant forms of psychological
abuse described in the Imperial Parking and Annuity
Research cases above.
Quebec's legislation has broad
implications for many employers in Canada. Obviously,
those employers with operations in Quebec should be
aware of the potential liability if an employee successfully
establishes that he or she has been psychologically
harassed in the workplace. A thorough review of existing
workplace policies should be conducted in order to
ensure that Quebec employees are advised of their
rights to be protected against psychological harassment.
Managers working with employees in Quebec should be
aware of the potential for complaints about psychological
harassment.
Many national companies have utilized
a hybrid approach. These companies have enacted workplace
conduct rules that meet the requirements of the Quebec
legislation. Quebec managers are provided additional
training to deal with the Quebec arbitral jurisprudence.
This hybrid approach ensures that all employees (in
and outside of Quebec) are aware of their right to
decent treatment, but that managers most likely to
encounter a legal complaint based on psychological
harassment have the extra training they need.
TOP
 First
Reference is a publisher of Canadian employment law
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Publications include The Human
Resources Advisor, Human Resources PolicyPro and the
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For more information or to purchase one of our publications,
go to www.firstreference.com.
P.A. Neena Gupta is partner with
Gowling Lafleur Henderson LLP, a national law firm
with 7 offices in Canada. The firm provides advice
and training to both unionized and non-unionized employers
in both French and English. This article is based
on several lengthy articles prepared by members of
the firm's National Employment & Labour Law Practice
Group. These articles are available to readers upon
request. For further information, please contact P.A.
Neena Gupta at neena.gupta@gowlings.com or 1.519.575.7501.
This article published on HRinfodesk
-- Canadian Payroll and Employment Law
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on legal developments of concern to businesses. Every
effort has been made to ensure the accuracy and timeliness
of this information. These publications are written
for informational purposes only and should NOT be
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©1999-2005
First Reference Inc.
1 46 Alta.
L.R. (3d) 220 at 232 (Q.B.)
2 Stamos
v. Annuity Research & Marketing Services Ltd.,
[2002]
O.J. No. 1865 (Ont. S.C.J.)
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