Employment and Labour Seminar 2013: Sticks and Stones an Update on Workplace Bullying


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Employment and Labour Seminar 2013: Sticks and Stones an Update on Workplace Bullying

  1. 1. Employment and Labour Law SEMINARS | 2013
  2. 2. Sticks and Stones: An Update on Workplace BullyingCome gather round peopleWherever you roamAnd admit that the watersAround you have grownAnd accept it that soonYoull be drenched to the boneIf your time to youIs worth savinThen you better start swimminOr youll sink like a stoneFor the times they are a-changin... Bob Dylan “The Times They Are A-changing” 2
  3. 3. Our ObjectivesEncourage you to consider and discuss these issues,openly, frankly and without pre-judgement:• Why it matters• What it is (and isn’t)• How to recognize and prevent it 3
  4. 4. Your ObjectivesWhether you are an employer, manager/supervisor orregular worker, do not be (or seem to be):• A bully• Ignoring a bully• Enabling or encouraging a bully• A victim of bullying 4
  5. 5. Practical Challenges• Analogous to dealing with sexual harassment 25 years ago• Similar challenges as when dealing with disability accommodation• A spectrum of behaviour with no clear consensus about the boundaries of the definition• The moving targets of political correctness and social norms 5
  6. 6. Why Does it Matter?Workplace bullying has both a human and economiccost.In the short-term, mid-term and long-term, workplacebullying affects:• the victim and his/her family and co-workers• workplace productivity and turnover• your customers and stakeholders• the bottom line• quality of life 6
  7. 7. The Legal Risks• The employer is legally required to establish a policy and program to prevent harassment and violence in the workplace – Occupational Health and Safety Act• Working conditions giving rise to a likelihood of physical injury can be a criminal offense – Criminal Code, s.217.1• Officers and Directors can be personally culpable under the OHSA and the Criminal Code• Many forms of harassment constitute breaches of the Ontario Human Rights Code• These issues can be grieved under collective agreements• Persistent episodes of harassment giving rise to psychological or physical injury can constitute compensable claims under the Workplace Safety and Insurance Act 7
  8. 8. The Legal Issues• The common law of negligence places a duty on employers to provide a safe workplace• Common law also gives a party a right to sue for other types of wrongs, such as assault and battery or intentional infliction of emotional distress• Employers can face constructive dismissal claims where bullying causes an employee to quit• Employers can be held vicariously liable for the wrongful acts of employees• An employer and a supervisor can be held liable for damages caused to a worker as a result of workplace bullying or harassment• Employers must take every reasonable precaution to protect the health and safety of workers (under the Occupational Health and Safety Act) 8
  9. 9. The Costs• Effects on worker and co-workers: • lower levels of job satisfaction • blocked or delayed career progression • psychosomatic symptoms and physical illness • short and long term disability• Signs and symptoms of workplace bullying may include: • grievances by employees against their manager • declining work performance • increased stress and tension in the workplace • poor morale • increased absenteeism • high staff turnover 9
  10. 10. A Worst Case Scenario – The Walmart CaseBoucher v Walmart – $1.46 Million in Damages Awarded for Walmart’s Failure to Preventand Address Workplace BullyingOn October 10, 2012, a jury awarded the highest award to date for an employment related suit inCanada. A total of $1.46 million was awarded to Meredith Boucher, an ex-employee of Walmartwho held an excellent ten year employment record with the company before she left in late 2009.The jury found that she was constructively dismissed when she was forced to leave after sufferingmore than six months of demeaning verbal abuse at the hands of her store manager, JasonPinnock. Boucher had made repeated complaints to Walmart’s district manager about theharassment she suffered and was advised her complaints did not warrant further considerationafter meeting with a committee of three senior managers.Walmart was found directly liable for $1.2 million in damages for intentional infliction of mentalsuffering and punitive damages, and $10,000 for not adequately addressing two assaults Ms.Boucher suffered at the hands of a fellow assistant manager. Pinnock is liable for the remainder ofthe award, but if Boucher cannot recover from Pinnock, Walmart will be liable for his portion aswell. Walmart has appealed. 10
  11. 11. Workplace Bullying DefinedWorkplace bullying covers a broad spectrum of problematic behaviours.Workplace bullying can include:• harassment or poisoned work environment• physical violence, sexual violence and threats of violence• reprisalsThe Occupational Health and Safety Act defines workplace harassment as engaging in a course ofvexatious comment or conduct against a worker, in a workplace – behaviour that is known or oughtreasonably to be known to be unwelcome• Comments or conduct typically happen more than once (patterns, persistence)• May occur over a relatively short period of time or over longer period of time• Typically offensive, embarrassing, humiliating or demeaning• May intimidate, isolate or even discriminate against the targeted individual 11
  12. 12. Workplace Bullying DefinedAs with Human Rights forms of harassment and discrimination,malicious intention is relevant but not a necessary element and notdeterminative.The effect is what matters, not intent of the perpetrator.Since an ounce of prevention is worth a pound of cure, we want tofocus on understanding what bullying is (and isn’t). 12
  13. 13. Workplace Bullying DefinedSticks and stones: bullying with words is very common.• Tone of voice (sarcasm, fake concern)• Remarks, jokes, innuendo• Chronic “call-outs” on trivial work performance issues• Gossip• Criticism, belittling, ridicule 13
  14. 14. Workplace Bullying DefinedBut workplace bullying is not just accomplished through words. As withHuman Rights forms of harassment and discrimination, there is a broadrange of conduct.Some bullying conduct is obvious:• gestures (eye-rolls)• embarrassing practical jokes• pictures, images• unnecessarily loud and/or public criticisms 14
  15. 15. Workplace Bullying DefinedBut bullying conduct can be subtle ...even silent.• Undermining authority - second-guessing, overruling, - removing responsibilities without good reason - pointedly overpraising/promoting others• Sidelining/marginalizing/dismissing• Isolating/excluding from work-related meetings, dialogues and opportunities• Social exclusion• Silent treatment• Setting unrealistic goals/workload/deadlines• Changing goals/deadlines without good reason/warning• Denying information or resources or support required to get the job done• Plagiarism, copying• Taking credit for other’s work or denying credit and rewards (positive evaluations, recognition, compensation, opportunities)• Excessive or unusual monitoring/supervision (micro-managing) 15
  16. 16. The Effect of Workplace CultureEmployers may unwittingly encourage or enable bullying behaviourby:• pitting workers against each other or promoting a highly competitive work style• lax management• setting/allowing unreasonable demands/deadlines• failing to give supervisors the authority to reprimand problem workers• providing insufficient funding to accomplish a goal 16
  17. 17. The Effect of Perception and PersonalitiesPerception, experience and personality “frame” the issue differentlyfor each individual involved.You need to be aware of:• varying management styles (tough love vs. kids gloves)• varying levels of training and “people management” skills• the subjective/objective divide or disconnect• the “thin-skull” employeeIt can be hard for some people to distinguish differences in opinionor fair criticism from bullying. It can also be hard for some people toprovide appropriate feedback without bullying. 17
  18. 18. What Isn’t Bullying?A supervisors conduct in discharge of his or her normalsupervisory/managerial duties is not normally bullying, even where ithas "unpleasant consequences" for the employee.For example, a fair but blunt and unflattering assessment of anemployee’s performance and reasonable demands that he or shefulfill the work expectations or risk discipline is NOT bullying.Unless…the message, the means of delivery, or the time and placeare ill-suited to the individuals and the circumstances. 18
  19. 19. What Isn’t Bullying?Most commonly, people will misconstrue normal work activity andmanagement action as “bullying” where:• they are not accustomed to direction, or to direct communications• there has been no preparation for the communication• they are particularly sensitive, feel isolated or insecure• they feel vulnerable at work, due to recurring work issues• the manner (or time and place) in which the message is delivered is unnecessarily abrupt, dismissive, or inconsiderate of the person’s feelings 19
  20. 20. Open, Frank and Respectful CommunicationsIs this communication or action:• fair?• respectful (even if blunt)?• necessary?• reasonable?• appropriate (justifiable)?• proportionate?• productive?• designed to serve a legitimate workplace goal?Is this the right time?Is this the right place?Is this the right means of delivery?Who else legitimately needs to know/see/hear this? 20
  21. 21. Open, Frank and Respectful Communications• People can have honest, serious disagreements about issues and questions• They can debate and differ, all in good faith• Supervisors/managers can critique work and assess performanceAll of this is appropriate, and in fact, it is very necessary.• Each individual employee needs to understand there is a legitimate purpose to open, frank and respectful communication• And each individual employee needs to understand that there is a line which should not be crossed 21
  22. 22. Crossing the LineCommunications (or non-communications) or actions which:• demean, denigrate or insult• challenge character and integrity, without purpose or proof• reference/focus on personal characteristics or vulnerabilities• shun, isolate and diminish the value of a person’s contribution and participation• intimidate (bully) or coerce• unfairly describe or evaluate a person’s work or overall performance, or threaten to• harass and threaten• cross the line. 22
  23. 23. What Is Your Anti-Bullying Strategy Trying to Foster?• An understanding of the issues and challenges• Insight• Self-awareness• Courtesy and decency• Honesty• Respectfulness• A more positive and effective workplace 23
  24. 24. Make the CommitmentLearn, understand, and educate your workforce.Prevent workplace bullying with a multi-prong strategy of:• education and (re)conditioning• training• strong written policies and effective practices• willing and timely and appropriate enforcementWhen you cannot prevent, then willingly and in a timely way:• investigate• address and redress• re-educate. 24
  25. 25. Thank You David Law Melanie Polowin Tel: 613-783-8829 Tel: 613-786-0244 Email: david.law@gowlings.com Email: melanie.polowin@gowlings.commontréal  ottawa  toronto  hamilton  waterloo region  calgary vancouver  beijing  moscow  london