Workplace Harassment Investigation

by HR Proactive Inc.

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Bullying & The Psychologically Safe Workplace

by Owen J. Mahoney at HR Proactive

For many people, bullying was something associated more with the schoolyard or playground than with the workplace. Many of us were taught that while sticks and stones may break our bones, words cannot hurt us.

We were taught wrong.

Bullying is a particularly pernicious form of harassment. It is the attempt to intimidate and exert control over another individual, whether physically or psychologically, covertly or overtly. In addition to intimidation, bullying also involves the belittlement and degradation of the targeted person, which is a direct assault on the person’s dignity and psychological well-being. Although, at its most extreme, bullying can result in physical assault, injury, and even death, it is most commonly manifested in what can be described as mental assault and injury.

Several high profile cases highlighting the effect of bullying on worker mental health, along with other developments in the law, have contributed to an emerging consensus that an employer’s duty to protect worker health and safety in the workplace extends beyond physical threats to now include threats to the psychological and mental health of employees. The Bill 168 amendments to the Occupational Health and Safety Act, which came into force in 2010, extend legal protections against harassment to all workers, not just those who are harassed because of a prohibited ground of discrimination. This, in effect, provides a new tool to be used against bullying in the workplace.

Dr. Martin Shain, a workplace mental health expert, notes that legal trends over the last decade point to “an emerging legal duty in Canada for employers to provide and maintain a psychologically safe workplace” for employees.

“A perfect legal storm is brewing in the area of mental health protection at work.

“This storm brings with it a rising tide of liability for employers in connection with failure to provide or maintain a psychologically safe workplace.

“…[T]he unmistakable common thread is the increasing insistence of judges, arbitrators and commissioners upon more civil and respectful behaviour in the workplace and avoidance of conduct that a reasonable person should foresee as leading to mental injury.” (“Tracking the Perfect Legal Storm, Converging systems create mounting pressure to create the psychologically safe workplace” 2010, p. 24). This developing legal consensus extends to considering the contract of employment “as one that contains implicit terms for psychological protection from egregious acts of harassment and discrimination.” (Perfect Legal Storm, p. 12.)

Shain defines a psychologically safe workplace as “one that does not permit harm to employee mental health,… one in which every practical effort is made to avoid reasonably foreseeable injury to the mental health of employees.” (Shain, “Stress at Work, Mental Injury and the Law in Canada: A Discussion Paper for the Mental Health Commission of Canada”, 2009).

The ramifications of this emerging consensus on the need to protect the mental as well as physical health of employees are enormous for Canadian employers, 82% of whom cite mental health conditions as one of the top three causes of short-term disability.

Shain points to cases in which overwork of employees through excessive overtime “lays the groundwork for a claim of negligent infliction of mental suffering based on failure to foresee the likely consequences of excessive work demands.” (p. 13) A case in point is the 2003 Ontario case, Zorn-Smith v. Bank of Montreal, 2003 OJ 5044 (Ont. S.C.J.). Zorn-Smith, a long-term employee, sued the bank for wrongful dismissal after being driven into depression because of an unreasonable workload and then terminated while on disability leave. The court, in finding for Zorn-Smith, said:, “This callous disregard for the health of an employee was flagrant and outrageous. That Susanne Zorn-Smith would suffer a further burnout was predictable – the only question was when it would come. It was foreseeable that such a burnout would cause her mental suffering.” In addition to damages of 16 months’ wages in lieu of notice, the court awarded Zorn-Smith an additional $15,000 for mental suffering.

Given what is known about the effects of bullying, it is no big stretch to imagine that failure to anticipate the consequences of workplace bullying would be similarly seen as negligent infliction of mental suffering. There is no shortage of literature and case precedent to demonstrate the kinds of psychological and physical effects that bullying can have on people, leading to chronic stress, depression and anxiety, and even suicide. We know that chronic stress can have a wide range of adverse health effects on the heart and the immune system. As for depression, anxiety and other mental illness, they cost Canadian employers $20 billion a year.

A case illustrating how costly bullying can be to the employer is Sulz v. Canada (Atty. General), [2006] B.C.J. No. 121, Jan. 19, 2006. Sulz, an officer in the RCMP detachment in Merritt, B.C., was subjected to a course of bullying and harassment from her detachment commander and supervisors over a period of years that rendered her so clinically depressed that she could no longer work. Sulz was found to be so psychologically battered by the conduct of the detachment commander that she was unable to return to her career in the RCMP, and remained “competitively unemployable in that she is only capable of working at uncomplicated tasks on a part-time basis, in a stress-free environment” [Sulz v. Canada (Atty. General), 176].

The court, noting the severity of the impact of this bullying, awarded Sulz $225,000 for past wage loss, $600,000 for future wage loss, and $125,000 for general damages, for a total award of $950,000, in addition to her costs. Clearly, employers simply cannot afford to have workplace cultures characterized by bullying, especially if the bully in question is a supervisor or manager.

Bullying can also have a toxic effect on the workplace as a whole. When a workplace is characterized by bullying, it is by definition a poisoned work environment, a place people will naturally try to avoid or leave, resulting in increased absenteeism and turnover, along with decreased morale. With such a workplace environment, an employer can look forward, in addition to increasingly substantial legal costs, to increased costs for recruitment and retention, increased use of employee assistance programs, and a loss of reputation and good will.

At its worst, of course, bullying can lead to violence. Pierre LeBrun, an employee of OC Transpo was harassed over the course of years by many of his co-workers because of his stutter, a classic case of mobbing. Management had been aware, and done nothing to stop it. On April 6, 1999, LeBrun shot four of his co-workers before turning his gun on himself.

These incidents and others have sharpened people’s awareness of the extreme harm that can result from bullying. It is no longer felt that individuals should learn how to handle bullying on their own, or that enduring bullying can be a character builder. It is now recognized that bullies are toxic individuals who can exact a terrible toll from their targets.

Several provinces in Canada (Québec, Ontario, and Saskatchewan) have expanded protection against harassment beyond human rights law.

In 2004, Quebec amended its Labour Standards Act to prohibit “psychological harassment” in the workplace. In 2007, Saskatchewan amended its Occupational Health and Safety Act to expand the definition of harassment to include personal harassment, which it equates specifically with bullying. Ontario’s Bill 168 amendments to the Occupational Health and Safety Act have similarly extended the definition of harassment to include personal harassment.

Thus, in these provinces, personal or psychological harassment—or more colloquially, bullying—has been effectively prohibited in the workplace.

Bullying, of course, is not restricted to people in positions of authority. In Kingston v CUPE Local 109 CanLII 50313 (ON LA), the arbitrator upheld the decision by the City of Kingston to fire a 28-year employee with an admitted and lengthy history of problems with bullying behaviour after she threatened a co-worker’s life. The arbitrator held that uttering a threat in the workplace is to be seen as an act of violence in itself. Thus, “the classification of threatening language as workplace violence” represents a “clear and significant change” to the law in Ontario. The arbitrator described the Bill 168 amendments as requiring “an employer [to] protect a worker from a hazardous person in the workplace.” (For more on this case, see Ron Minken, “Verbal threat considered workplace violence”, Canadian HR Reporter, October 10, 2011.) There is another term for such a hazardous person: bully.

As the Sulz case shows, bullying can have career-ending and permanently disabling impacts on its victims. As the LeBrun case shows, it can metastasize into deadly violence. These cases, and others, show that employers cannot afford to do nothing about bullying. Due diligence for employers requires that they

  • develop unambiguous anti-harassment and anti-violence policies
  • train employees and management in these policies
  • set out a process for investigating complaints that is fair, thorough, unbiased and objective
  • avoid practices, such as routine over-assignment of overtime and extra work, that are a threat to employee’s mental health and well-being.

Employers need to adjust their focus to work toward what Shain terms the psychologically safe workplace, “one that does not permit harm to employee mental health… one in which every practical effort is made to avoid reasonably foreseeable injury to the mental health of employees.”

A workplace where employees feel that the employer will have their back if they take action against a bullying co-worker or supervisor will retain its best people, and make it clear to abusers and bullies that they need to change their behaviour if they wish to remain employed.

Owen J. Mahoney
HR Proactive Inc.