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From Words to Weapons: “Bullying” in Canada

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I Introduction

Occupational health and safety concerns regarding workplace violence have now caught the attention of legislators, mental health practitioners, employers, and organized labour. Prompted by well publicized examples of workplace violence, decision makers are quickly becoming aware of the potential for this type of behaviour to take root in almost any organization. No longer can we find comfort in our long-held belief that such behaviour is the product of a "madman" or an aberration of U.S. culture, which has momentarily drifted northwards. Available research both here and abroad clearly suggests the definition of "workplace violence" can no longer be confined to physical acts, but should include a wide range of behaviours no less damaging and in some instances the trigger for further, more dramatic acts of aggression. The landscape of workplace violence now includes "intimidation", "bullying", "harassment" and a host of other behaviours whose only purpose is to isolate and denigrate the intended victim.

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II Background

The term "bullying" is a relatively new one in Canada and hence is not clearly defined in both prevailing legislation and law. This has caused a considerable problem for many who have been targeted by bullies at work, limiting their recourse and frustrating their attempts to take action.  

Bullying is characterized as vindictive, cruel, malicious or humiliating behaviour which knowingly or unknowingly undermines an individual or group of employees. These persistent attacks are typically unpredictable, irrational and unfair. Although commonly thought of as schoolyard behaviour, it happens with great regularity within the workplace. Bullying and intimidation can happen at every level of the organization, often tolerated in managers who are relentless in getting results in a highly competitive market. Valed threats of reprisals in the form of demotions, poor performance appraisals can characterize the bully in-charge. However, we must not think of the bully as only a manager, many employees are relegated to a workgroup in which a co-worker can be equally as intolerant. Demoralized over time, co-workers or subordinates of the bully, lose productivity, become depressed and feel the only option left is that of retaliation, resigning or taking "sick" leave. Sadly, we do not know the economic costs associated with bullying and just how many promising employees have left their positions prematurely. What we do know with certainty is that on rare occasions, an employee's retaliation can turn deadly, as was the case at OC Transpo in April, 1999.

Examples of bullying include

  • punishing others by constantly criticizing them or removing their responsibilities or giving trivial tasks as punishment;
  • refusing to delegate because they don't trust anyone or wish to monopolize the benefits;
  • shouting and name calling directed at staff often in a public forum;
  • innuendo, deliberate silence, rude gestures and aggressive posturing;
  • persistently picking on people in front of others or in private;
  • keeping people in their place by blocking their promotion;
  • various forms of work interference such as sabotaging the effort of others;
  • reprisals by overloading an individual with work and reducing time frames;
  • insisting that that there is only one way to do things right...their way; and
  • other behaviours that are intended to isolate and undermine the intended victim(s).

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III The Impacts of Bullying

Although not always evident, the short and long term impacts of bullying behaviour can be considerable. Victims of chronic bullying frequently have a range of symptoms which they or others may not readily link to the workplace. Symptoms may include, sleeplessness, depression, generalized and/or situational anxiety, lowered self-esteem, self-doubt, irritability, and a range of other behaviours. When one looks closely at the phenomenon of bullying there are many similarities to that of spousal abuse, not the least of which is that women appear to be the prime target of such behaviour. As with spousal abuse a situation develops whereby the victim is increasingly isolated and made to feel that they are somehow responsible for the offensive behaviour, and/or deserving of the ridicule. Although the research is not conclusive, there are some suggestions that chronic bullying can lead to increased substance use on the part of the victim or other self-defeating behaviours. The end result of bullying is that the victim must either endure this type of behaviour, or leave.

From the organizational perspective, it is virtually impossible to appreciate the full impact. Some organizations, given their culture, will actually promote and maintain such behaviour believing it to foster competitiveness and increased productivity. Sadly, the end result is that the important concepts of team play, shared effort and mutual support become eroded. In their place a culture of suspicion and antagonism develops that can negatively affect profits, productivity and corporate image.

Frequently, organizations do not have a clear code of conduct to address this type of behaviour, and when the victim confronts his aggressor, the problem can be marginalized by being described as a "personality conflict" or simple "communication problem". This is particularly the case where the bully is a supervisor or senior manager.

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IV Victim Care

The road to recovery, in part, depends on the nature and length of time one has endured bullying behaviour. It is critically important from the outset for the victim to understand that he/she are not the architect of the bully's behaviour. We have the right to work without intimidation and at no time should the victim be blamed for the behaviour of the perpetrator. Searching out the support and guidance of an experienced counselor is very important if one lacks a personal support network. Isolating yourself during a time when you need the affirmation of others may only deepen the wounds...the most dangerous of which is that you deserved this.

Given the recent attention given to bullying within Canada, the legal remedies for the victim are underdeveloped and not at all clear. Although the legal landscape may be difficult navigate, there remain some legal avenues worth exploring for those victimized.  

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V Legal Redress

Broadly speaking there may be legal redress on civil grounds, or on a demonstration that legislation has been willfully breached. In considering or taking such action, individuals are strongly encouraged to consult with qualified legal counsel.

On the regulatory side, victims should consider their rights and responsibilities under the prevailing Human Rights Code or Occupational Health and Safety Act.

The Human Rights Code

The Canadian and Provincial Human Rights Codes protect each of us from harassment which is discriminatory on selected grounds. The "Code" as it is commonly referred, protects us from discrimination resulting from race, national/ethnic origin, colour, religion, age, sex (including pregnancy and child birth), marital status, family status, pardoned conviction, physical or mental disability (including dependence on alcohol and drugs), and sexual orientation.

Under the Code, harassment is a prohibited activity in the context of employment. Harassment is defined in the Code as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome". When considered in the context of behaviour known as "bullying" there may well be some recourse providing the offensive behaviour can be linked to the prohibitive actions specified in the Code.

If an individual can demonstrate that bullying is motivated by one of the prohibited grounds the Code may apply. If you suspect this is the case, a call to the Human Rights Commission in your province may provide valuable information in making a determination as to your rights. In addition, a consultation with a lawyer proficient in both Human Rights Legislation and Labour Law may be of benefit. Many provincial Law Societies have a "lawyer referral service" that can provide you with the names and numbers of qualified lawyers in your area.   

Occupational Health and Safety Act

Each province has an Occupational Health and Safety Act which applies to employers within the province to ensure they provide their employees with a "safe" workplace. Federally regulated employers are governed by the Canada Labour Code, of which Part II is the Federal Occupational Health and Safety Act.

Part II of Canada's Labour Code which applies to federally-regulated employees was amended and received Royal Assent in June 2000 with the intent of improving occupational health and safety in the federal workplace. It strives to create a better balance between the role of government and that of employers and employees, and reflects changes in the workplace such as advances in technology that have a bearing on employees' health and safety. Although, regulations have yet to be issued, the legislation is law and should be heeded by federally-regulated employers. Of particular importance is the addition of a new clause, allowing for regulations which deal with the establishment of anti-violence initiatives.

Employers have a responsibility to take reasonable care to provide their employees with a safe workplace. Provinces currently differ in their approach to the issue of workplace violence. British Columbia, Alberta, Saskatchewan, Manitoba, Quebec and Nova Scotia have clauses entrenched in their Occupational, Health and Safety Acts (Labour Standards Act) which focus specifically on violence, although they differ in terms of definitions and remedy. Saskatchewan and Quebec are the only two provinces that specifically refer to "psychological harassment". In December, 2007, Bill 29, a Private Members Bill, was tabled in the Ontario Legislature addressing workplace violence, including psychological harassment. It has passed first reading and many hope it will eventually receive royal assent.

Although an individual may wish to press the issue of bullying under the prevailing Occupational Health and Safety Act of their province, one can see there may be differing outcomes, depending on the inclusion of psychological harassment ("Bullying"). If one were to launch a complaint under the Act, or refuse unsafe work because of bullying behaviour, one should reasonably expect protection from reprisal under the Occupational Health and Safety Act providing their action is not trivial or malicious.

Before considering this as a route of complaint, seek legal consultation to ensure your rights and responsibilities.    

Constructive Dismissal

There is a suggestion that bullying could, in certain circumstances, constitute "wrongful dismissal". Generally speaking, this is defined by circumstances in which an employer, although not acting explicitly to terminate a person's employment, acts unilaterally to alter the employment terms and conditions such that the employee is entitled to regard the employer's conduct as a termination.

Again, the application of constructive dismissal varies depending on the situation and on the conduct of the employer in question. Given the complexities of this issue, legal counsel is most certainly required.

Intentional Infliction of Nervous Shock

Although on the surface, this concept appears an appropriate argument for seeking redress from the workplace bully; legal guidance is required to ensure that your situation meets the legal test of such acts.

It must be demonstrated that the behaviour in question is "outrageous", "calculated to produce the effect that was actually produced" and that the "conduct produced actual harm by way of a visible illness".

As one can quickly see, there is a challenge in demonstrating any one of these conditions. Although the task may appear daunting on the surface, victims of bullying have been successful in advancing this argument.

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VI Conclusion

In many instances organizations have policies and procedures to protect employees against harassment and other forms of abuse. One should exhaust these avenues before considering legal action unless in severe circumstances.  

Whatever route a victimized employee takes to stop the abuse and prevent the circumstances form happening to others; ensure you take very detailed and easily retrievable notes of all instances and efforts to defend yourself. These documents will prove invaluable in whatever route you take to remedy the situation, whether it is through internal channels or through the courts.

From all accounts, workplace violence results in significant personal and organizational costs, all of which can be either reduced or eliminated through a comprehensive workplace violence prevention program. This program should be grounded in a health promotion plan which addresses the issue of workplace conduct from a variety of perspectives. Given emerging legislative requirements, employers will increasingly be held to account for the conduct of their employees. Now is the time to assume this important responsibility in the best interest of all concerned. Please check out Bulletin 540 - November 16, 2007, at http://www.ohpe.ca/index.php?option=com_content&task=view&id=9124&Itemid=78 for an overview of a comprehensive framework to minimize the risk of workplace violence.