Bullying and harassment – know your rights and your duties

In our last article on the workers compensation system, we provided an overview of discriminatory action complaints in order to provide employers with some tools to respond to, and avoid, such complaints. In this article we look at WorkSafeBC’s approach to bullying and harassment and, specifically, what type of behaviour constitutes bullying and harassment, the consequences of not addressing bullying and harassment, and tips for preventing bullying and harassment complaints and claims.

As a starting point, WorkSafeBC’s definition of bullying and harassment consists of four elements:

1.  inappropriate conduct or comment;
2. by a person;
3.  toward a worker;
4. that a person knew, or reasonably ought to have known, would cause that worker to be humiliated or intimidated.

Importantly, a “person” is defined broadly under the Workers Compensation Act, and includes any individual, whether or not they are a workplace party. In other words, employers are not just responsible for taking reasonable steps to prevent bullying and harassment by their employees. Employers also have a duty to take reasonable steps to prevent bullying and harassment by members of the public, clients, or anyone a worker may come into contact with while in the course of their employment. What constitutes “reasonable steps” will depend on the circumstances, but employers need to be alive to the possibility of a complaint, and potentially a claim, triggered by the actions of a third party.

Although the definition of bullying and harassment is fairly broad, bullying and harassment must be distinguished from the proper exercise of managerial authority. Reasonable actions taken by an employer or supervisor relating to the management and direction of workers will not generally constitute bullying and harassment. For example, providing constructive feedback or reprimanding a worker would likely not constitute bullying and harassment, provided such actions are carried out in an appropriate manner.

Failing to address bullying and harassment in the workplace can have negative consequences for an employer, including:

• lost productivity and efficiency;
• increased stress and anxiety for workers;
• increased absenteeism; and
• higher turnover.

In addition to the above impacts on the workplace, which can lead to indirect costs, bullying and harassment can have direct monetary costs. Where a worker develops a mental disorder as a result of bullying and harassment, they can bring a claim to WorkSafeBC and may be entitled to compensation if they can establish the bullying and harassment constituted one or more traumatic events, or was a significant work-related stressor, arising out of and in the course of their employment. Accordingly, responding quickly and appropriately to bullying and harassment can have a direct impact on claims costs.

Tips for preventing bullying and harassment claims:

1. Ensure everyone in the workplace – employees, supervisors, contractors, etc. – understands their duties and obligations with respect to preventing bullying and harassment;
2. Ensure a policy with reporting procedures is in place that directs complainants to the appropriate person (and to an alternative person where the appropriate person is the alleged bully or harasser); and
3. Take all complaints of bullying and harassment seriously.

For questions relating to this article, please contact Brad N. Cocke.

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