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WORKPLACE LAW

New Anti-Bullying and Anti-Harassment Legislation Effective November 1, 2013, WorkSafeBC introduced new occupational health and safety policies on workplace bullying and harassment. The Workers Compensation Act (Act) now provides that the duties of employers, workers and supervisors to ensure or protect health and safety include protection from workplace bullying and harassment.

Under this legislation, bullying and harassment include any action that humiliates or intimidates others. Bullying—often referred to as “personal harassment”—is the act of intentionally causing harm to others through verbal harassment, physical assault, or other, more subtle, methods of coercion such as manipulation. It is often perpetrated by an abuser who possesses more physical and/or social power and dominance than the victim.

Specifically, bullying and harassment include: • verbal aggression or name calling • vandalizing personal belongings • sabotaging work • spreading malicious rumours

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• humiliating initiation practices • personal attacks • aggressive and/or threatening gestures • cyberbullying, including ignoring and isolating a co-worker. This coercion can include words, gestures, and actions that tend to annoy, harm, abuse, torment, pester, persecute, bother, and embarrass another person. It can also include subjecting someone to vexatious attacks, questions, and demands—or other unpleasantries.

The concern that the legislation addresses is that workplace bullying and harassment often result in health and safety issues. They can distract someone who is performing dangerous tasks and cause physical and/or psychological injury. For an employer, such abusive actions can add to operational costs as they often lead to lower productivity and morale and high absenteeism rates. They can also result in higher staff turnover and higher compensation claims.

Most important for businesses to consider is the far-reaching extent of the protection since bullying and/or harassment can come not only from co-workers, supervisors, and employers but from external sources, including contractors and customers. The concept of “workplace” goes beyond the location where employees and employer are together.

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The new legislation does, however, recognize that some workplace differences and disagreements are not bullying or harassment. These include: • straightforward expressions of differences of opinion • offerings of constructive feedback • legitimate complaints about another employee’s work conduct • reasonable management actions, such as decisions about job duties and work to be performed, workloads or deadlines, layoffs, transfers, promotions, reorganizations, work evaluations, discipline, suspensions, or terminations.

Previously, in order to make a claim for work-related stress such as might result from bullying, employees had to show they suffered from acute reactions to sudden and unexpected traumatic events arising out of and in the course of their employment. These had to be diagnosed by a physician or a psychologist as a mental or physical condition defined in the latest edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

The relevant amendments to Division 2, Section 5.1 of the Act now read, in part, that: a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental disorder (a) either (i) is a reaction to one or more traumatic events arising out of and in the course of the worker's employment, or

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(ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker's employment, . . . (Author’s emphasis.) The diagnosis must now be made, not by a physician, but by a psychiatrist or psychologist.

In both the old and new sections of the Act, the stress in question cannot be caused by an employer’s decision relating to a worker's employment, such as changing work to be performed or working conditions, administering discipline, or terminating employment.

Under the new legislation, every employer must: •

take steps to prevent or minimize workplace bullying and harassment

•

develop a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated

•

develop procedures for workers to report incidents including how, when, and to whom a worker should report to outline how to proceed if the alleged harasser is a supervisor or person acting on behalf of the employer

•

develop and implement procedures for how the employer will deal with incidents of bullying

•

inform workers of the policy statement

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•

train supervisors on recognizing bullying, responding to bullying, and the procedures for reporting and dealing with bullying.

What is unclear is how WorkSafeBC will respond to complaints where the worker does not take time off and how these claims will be investigated. It is also unknown, if the harassment is based on a prohibited ground under the British Columbia Human Rights Code, whether the employer will now be protected by this legislation from a human rights complaint. No doubt there will be many interesting outcomes from this new legislation.

For more information on legislation concerning workplace bullying and harassment, please contact Melanie Samuels………………[email protected]