Harris & Company LLP
Workplace Law& Advocacy
WHEN A POLICY ISN’T ENOUGH: WORKPLACE VIOLENCE, BULLYING AND HARASSMENT AND EMPLOYER OBLIGATIONS
BCMSA/PWABC Joint Annual Conference 2019
Kacey A. Krenn
Workplace Law & Advocacy
Agenda
• Statutory and Legal Obligations • Claims and Prevention• Responding to Claims of Bullying &
Harassment• Policy Requirements• Investigating Complaints
Workplace Law & Advocacy
STATUTORY & LEGAL OBLIGATIONS
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Workers Compensation Act
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Legal Obligations: Workers’ Compensation Act
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Section 107• To promote culture of commitment by workers and
employers to a high standard of OH&S• Prevent work-related accidents, injuries and
illnesses• Environment which provides for the health and
safety of workers and others• To ensure shared responsibility for occupational
health and safety
Workplace Law & Advocacy
Employers’ ObligationsSection 115 Workers Compensation Act“employer general duty section”
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Ensure the health and safety of all workers
Inform, instruct, train and supervise workers
Remedy workplace conditions, hazardous to the health and safety of workers including… workplace bullying and harassment
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Workers’ Compensation Act
Ensure that workers under his/her supervision:- Are aware of all known or reasonably foreseeable
health and safety hazards- Comply with Act and Regulations
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Supervisor Duties:
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Workers’ Compensation Act
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Worker Duties
Protect own safety
Protect safety of others
Take reasonable steps to prevent and address hazardous conditions, including reporting bullying and harassment
Workplace Law & Advocacy
Claims:Section 5.1 of the WCA: Pre-Bill 14
Worker entitled to compensation for “mental stress” only if the mental stress was:
1. An acute reaction to a sudden and unexpected traumatic event arising out of or in the course of employment.
2. Diagnosed by a physician or a psychologist as a physical or mental (DSM) condition; and
3. Not caused by a decision of the worker’s employer relating to the worker’s employment
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Workplace Law & Advocacy
Claims:Section 5.1: Post-Bill 14
Section 5.1 now provides compensation for mental “disorders” where:
• Mental disorder is a reaction to one or more traumatic events arising out of or in the course of employment
• Is predominantly caused by a significant work-related stressor, including bullying and harassment, or a cumulative series of significant work-related stressors
• Diagnosed by a psychologist/psychiatrist• Excludes employment decisions of worker’s
employer, but HOW communicated may create claim
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Workplace Law & Advocacy
Mental Disorder Claims, by eligibility status:
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Allowed Disallowed No Adjudication Pending Rejected Suspended Total
2016 1,253 1,061 250 2 18 1,041 3,625
2017 1,351 1,093 280 4 15 1,191 3,934
2018 1,516 937 282 381 20 1,268 4,404
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19% 13%
*2016 General Social Survey on Canadians at Work and Home (GSS)
Harassment in Canadian Workplaces (December, 2018)
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Mental Disorder Claims: Bullying and Harassment
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Test for compensation:1. Diagnosed mental disorder:
Psychologist/ Psychiatrist2. Has to either be:
a) A reaction to one or more traumatic events; or
b) A significant work-related stressor (includes bullying and harassment)
3. Predominantly caused4. Excludes legitimate supervisory
activity
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Assessment of Claim(s)
2 (a) Traumatic Event
- “Sudden and violent physical or mental impression”
- “deeply disturbing and distressing”
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Assessment of Claim(s)
2 (b) “Significant work-related stressor”
• Excessive in the intensity and/or duration from what is experienced in normal workday pressures or tensions
Examples: deliberate physical contact• Threat of “kicking teeth down throat” or “wanting to
punch a wall”• Threatening, coercive or abusive • Safety breaches and retaliation
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2 (b) Not Significant Workplace Stressors
• Personality conflicts unless abusive or intimidating• Some swearing and/or name-calling• Staring/glaring at worker• Social media posts, if not tied to worker’s
employment• Thoughtless, rude or loud communications
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Assessment of Claim(s)
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3. Causation – “Predominant Cause”
• Clear evidence linking disorder to workplace events
• Lack of evidence linking disorder to any other cause
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Assessment of Claim(s)
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Mental Disorder Claims
90 days to Review Division
90 days to WCAT
Discriminatory Action Complaints
30 days to WCAT
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90
Appeal rights
WorkSafeBC gets it wrong…a lot
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Prevention is key Impact on employees
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ProductivityAnxietyAccidents & injuries
Mental health
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What Prevention Officers can/will do20
Ensure that employers have appropriate framework for dealing with bullying and harassment in the workplace.
Ensure that employers are applying their bullying and harassment policies.
Assess whether employers are taking reasonable steps to prevent bullying and harassment in the workplace.
Issue orders for failure to comply with the provisions dealing with bullying and harassment in the Workers Compensation Act.
Evaluate whether a penalty should be issued for any failure to comply with the provisions dealing with bullying and harassment in the Workers Compensation Act.
Workplace Law & Advocacy
What Prevention Officers cannot/will not do
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Screen any complaints made by employees regarding bullying and harassment in the workplace.
Assess whether a bullying and harassment investigation undertaken by the employer was properly decided.
Overturn a finding with respect to bullying and harassment that has been made by an employer.
Provide compensation to a complainant who alleges bullying and harassment in the workplace.
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RESPONDING TO CLAIMS OF BULLYING & HARASSMENT
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Respond effectively
to bullying and harassment
Review your policy
Be aware of other sources of complaints
Conduct a fair investigation
Annual audit of Complaints / processes
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Complaint Issues:
• Collective Agreement Interaction• Union involvement in Investigations• Confidentiality• Investigations:
– Competence– Notes & Records– Witnesses’ Rights
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Definition of Bullying & Harassment
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Inappropriate conduct or comment
By a person
Towards a worker
That a person knew, or reasonably ought to have known, would cause that
worker to be humiliated or intimidated
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Broad Application
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WORKPLACE PARTIES
• Employer• Supervisor• Co-worker
• Member of the public• Client• Anyone a worker
comes into contact with at workplace
NON-WORKPLACE PARTIES
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Who is the ‘reasonable person’?
• “… The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions…”
• Objective standard• Subjective considerations as well
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Examples
Verbal aggression or insults
Harmful or offensive initiation practices
Targeted social isolation
Vandalizing worker’s belongings
Cyber bullying
Personal attacks based on private life or personal traits
Spreading gossip or rumours
Sabotaging work
Aggressive threatening gestures
Physical assault or threats
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Workplace Law & Advocacy
Exceptions
• Work instruction, supervision or feedback
• Workloads and deadlines
• Discipline, suspension, terminations
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• Job duties or work to be performed
• Work evaluation• Performance
management• Lay-offs, transfers,
reorganizations
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Exceptions
• Expressing differences of opinion• Offering constructive feedback, guidance, or
advice about work-related behaviour and performance
• Making a legitimate complaint about someone’s conduct through established procedures
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What is Discrimination?
• Section 13 of the Human Rights Code• Prohibited to discriminate in employment
because of:• sex, race, colour, ancestry, place of origin, political belief,
religion, marital status, family status, physical or mental disability, sexual orientation, age, gender identity or expression, or criminal conviction unrelated to the person’s employment
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Sexual Harassment
• Conduct or comments of a sexual nature OR based on sex
• That is unwelcome• Detrimentally affects the work environment
or leads to adverse job-related consequences
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Sexual Harassment
Examples:• Unwanted touching• Unwelcome sexual flirtations, advances or
propositions• Sexually suggestive, obscene or degrading comments,
gestures or jokes• Displaying or circulating material of a sexual nature• Unwelcome comments or questions about sex life,
appearance or clothing
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Violence
• If bullying and harassing behaviour becomes violent or involves threat of violence
• Employer must take appropriate action to eliminate or minimize risk of workplace violence
• If violence results in injury, must investigate and report to WorkSafe
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POLICY REQUIREMENTS
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Policy Requirements
Set out the duties of:
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Employer Supervisors Employees
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Employer Duties
• Create policy statement• Prevent or minimize bullying and harassment• Establish reporting procedures• Investigation and response• Train supervisors and employees• Enforce policies/procedures• Review policies annually
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Supervisor and Employee duties
• Report bullying or harassment, whether:– Experienced; or– Observed
• Comply with policy/procedures
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When to Report
Timely reporting facilitates prompt and efficient investigation and intervention by the employer.
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Reporting Procedures
Informal resolution– Discuss concerns directly
(This step is not mandatory)
– If informal resolution fails, proceed to formal complaint/investigation
Formal complaint– Under the reporting procedure set out in policy
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Informal Process
• Both parties must agree• If resolved, complaint dismissed• If not successful – formal complaint and
investigation
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Other Requirements for Employers
• Prevent or minimize bullying & harassment• Train supervisors and workers• Conduct annual review of policy, reporting
procedures
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INVESTIGATING COMPLAINTS
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What will be included?
Interviews:– Complainant– Respondent– Any witnesses
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Reviewing evidence:– Documents– Emails– Photos
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Roles and Responsibilities
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Employer/Supervisor Employee Investigator
• Ensure procedures are followed
• Cooperate in investigation
• May be internal or external
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Conducting Effective Investigations
• Provide a fair process• Obtain all relevant information• Make findings of fact• Make a sustainable decision based on the
facts
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Conducting Effective Investigations
• Who should investigate?– Must be unbiased– Internal vs. external investigator
• Respondent must be given substance of allegations
• Respondent must be given opportunity to respond
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Conducting Effective Investigations
• Role of investigator:– Collect evidence– Evaluate facts & assess credibility– Make findings and/or recommendations
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Conducting Effective Investigations
• Interviews:– Advise of role of investigator– Confirm duty to investigate– Give confidentiality caution– Requirement for honesty– No retaliation
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Workplace Law & Advocacy
Conducting Effective Investigations
• Evaluate evidence• Includes assessment of credibility • Make findings based on policy• Beware of hearsay or coached evidence
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Follow-up
• Notification of investigation findings• Corrective actions
– If bullying, harassment or discrimination has occurred
– False/malicious complaints– Obstruction of investigation
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QUESTIONS?