Harassment in the Workplace

The Canadian Human Rights Commission (CHRC) plays a pivotal role in the policing and enforcement of laws and regulations designed to thwart harassment.

The CHRC’s activist role flows from the Canadian Human Rights Act. Section 14 of the Act contains the following prohibition against harassment:

• (1) It is a discriminatory practice,
  • a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
  • b) in the provision of commercial premises or residential accommodation, or
  • c) in matters related to employment,

to harass an individual on a prohibited ground of discrimination.

(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.

Protection against acts of employment harassment is not limited to the employee’s normal workplace or the employer’s general premises. The CHRC has held that the Act protects individuals anywhere they may find themselves in the course of their work, during or outside normal working hours.

Harassment may be related to any of the discriminatory grounds contained in the Canadian Human Rights Act.

The harassing behaviour may be verbal, physical, deliberate, unsolicited or unwelcome. It can be either one incident or a series of incidents. While not an exhaustive list, the CHRC suggests that harassment may include:

• verbal abuse or threats;
• unwelcome remarks, jokes, innuendos or taunting about a person’s body, attire, age, marital status, ethnic or national origin, religion, etc.;
• displaying of sexual explicit, racist or other offensive or derogatory pictures;
• practical jokes which cause awkwardness or embarrassment;
• unwelcome invitations or requests, whether indirect or explicit, or intimidation;
• condescension or paternalism which undermines self-respect;
• unnecessary physical contact such as touching, patting, pinching, punching; or
• physical assault.

Harassment will be considered to have taken place if a reasonable person ought to have known that such behaviour was unwelcome.

The CHRC will investigate complaints launched under Section 14(1)(c) of the Canadian Human Rights Act. In investigating and deciding each case, the Commission will undertake an objective examination of all the circumstances, including the nature and context of the incidents.

To determine whether workplace harassment has in fact occurred, the CHRC examines such practical considerations as whether there is a term or condition of employment that constitutes harassment. This includes:

• the availability or continuation of work, promotional or training opportunities;
• interference with job performance; or
• policies, acts or actions that humiliate, insult or intimidate any individual.

The employer is somewhat accountable for the harassing actions of employees. The Act holds that any harassment committed by an employee or an agent of any employer in the course of the employment shall be considered to be an act committed by that employer. However, and here is the loophole, an act of harassment is not considered to be an act committed by an employer if it is established that the employer did not consent to the commission of the act and subsequently, to mitigate or avoid its consequences.

As union leaders, it is our responsibility to combat and eliminate workplace harassment. The Canadian Human Rights Commission Website is a valuable source of information for Local officers.

The PSAC believes that every individual has the right to dignity and respect, both within the union and in the workplace.

Harassment based on a prohibited ground of discrimination, as well as personal harassment, are totally inconsistent with the principles of union solidarity, dignity and respect. As such, the PSAC does not condone any form of harassment or discrimination.

The PSAC Policy on Union Representation – Workplace Harassment deals with harassment that occurs in the workplace. It is the employer’s responsibility to create and maintain a workplace free of harassment. Your union has a role in making sure the employer meets that important responsibility.

To provide representation, I need to decide whether there was harassment. How do I do that?

Under this policy, you should provide representation unless you consider that no harassment has occurred. This is the same question that human rights commissions ask when they are deciding whether to investigate a complaint as well.

You are not required to conduct a full investigation into the complaint — that is the employer’s job. Read the allegations, look at the definition of harassment, and talk to the complainant/ grievor. If, taken as true, these allegations could constitute harassment, the Union can represent and — in doing so — make sure that the employer fully and fairly investigates the allegations.

If you decide that the allegations, if taken as true, would not meet the definition of harassment, you should communicate your reasons to the complainant/grievor — preferably in writing. For example, if someone alleges that a manager is monitoring his/her work performance, and there is no reasonable information that would suggest that this is motivated by discrimination or harassment, you need not provide representation.

What do I do if allegations of harassment are made against one or more PSAC-represented employees?

The employer is responsible for maintaining a harassment-free workplace and is responsible for investigating a complaint. The person(s) alleged to have engaged in harassment (Respondent(s)) will be advised by the employer as a result of the filing of a grievance or complaint.

A Respondent may seek assistance and advice from the Union with respect to the process in place in the workplace for addressing allegations of harassment.

For example, the Union will provide the Respondent with information outlining the grievance or complaint process and employer contact information. It will remain available to answer questions related to process and may step into making general representations where a fair and thorough process is not being followed by the employer.

If the Respondent receives discipline as a result of the grievance/complaint, then he or she can approach the Union with a request for representation. The Union will consider whether any resulting discipline was warranted or was excessive, or whether any other resulting corrective measures were reasonable in deciding whether it will provide representation.

For employees employed in the Federal Public Service, where a Respondent has been found guilty of harassment and the disciplinary measure is an involuntary deployment, the Union (PSAC) will not provide representation where it believes the deployment was reasonably necessary to address the harassment.

What do I do if there are cross-complaints?

This happens when person A files a harassment complaint against person B, and person B files a harassment complaint against person A.

Where a series of cross-complaints are filed, it becomes difficult for the Union to take a representational role, particularly where the allegations could — on their face — meet the definition of harassment. These situations are extremely complex and divisive. It makes the most sense for the Union to play a role that ensures that the employer deals with the allegations in a timely and fair manner. The Union’s role, therefore, is to monitor the process rather than to adopt the role of full representative for one side or the other.

When the process is concluded and the result is disciplinary action or other corrective measures, an employee can approach the Union, but the Union needs to decide whether the measures are excessive before deciding to represent the affected employee.

What do I do if I feel I am being harassed?

Any employee in a PSAC-represented bargaining unit who believes he or she is experiencing harassment in the workplace (the Complainant) can approach his or her Local Union Representative for information and/or assistance.

I have been named the Respondent in a harassment complaint. What do I do?

Approach your Local to ask questions if you are unsure about what to expect. Cooperate with the investigation and provide as much relevant information as you can. If you receive a disciplinary sanction as a result of a finding of harassment, then you can approach your Local for appropriate representation. The Union can provide you with representation if it believes that the sanctions are excessive or unreasonable in the circumstances.

Why do I not receive full representation as the Respondent?

The Union cannot argue both sides of the harassment equation. If a set of allegations could constitute harassment, then the employer has a responsibility to deal with it effectively. The Union’s ability to hold the employer to that important responsibility is most effective where we provide representation to a complainant. We cannot, on the one hand, say that the allegations constitute harassment, while on the other hand, we say they do not. At the end of the day, the grievance/complaint process is a fact-gathering exercise to determine if the allegations are supported. Because of this, we can still play a role for you by giving you information about the process and to monitor the employer while it investigates the allegations.

As indicated earlier in this policy, the employer has a clear legal liability to create and maintain a harassment free work environment. The following guidelines are provided to assist all concerned when a complaint/grievance of personal or sexual harassment is received. These guidelines are built upon the principles of confidentiality, expediency, and fair and due process for both the complainant and the respondent.Because of the sensitive nature of this problem, all avenues of assistance should be open to a member who is being harassed. The following steps, however, would be the basic steps that a Union representative would normally follow.1. When a written complaint is received from a member, PSAC Regulation 19 is to be followed. All investigations conducted by the Union may be parallel to and independent of any investigation carried out by management. All information must be treated on a confidential basis, except to the extent that it is necessary to complete the investigation.2. All parties to the investigation will receive a copy of the USJE Policy on Harassment, including PSAC Regulation 19.3. Where a complaint is upheld by the employer and the harasser(s) receive a disciplinary penalty, at their request, the Union will review the disciplinary penalty and, where it is determined the penalty is unjust, will provide the harasser(s) with representation on a subsequent grievance. In some cases, some representation will be limited to the severity of the penalty.4. If the Local decides to provide representation to an alleged harasser, the Local should warn the alleged harasser, in writing, that representation at one level of the grievance procedure does not guarantee representation at further levels. The Union will not withdraw representation in an arbitrary or discriminatory manner, but the Alliance may choose to withdraw once a final decision is made on whether the discipline is unjust.

What is workplace violence?

Most people think of violence as a physical assault. However, workplace violence is a much broader problem. It is any act in which a person is abused, threatened, intimidated or assaulted in his or her employment. Workplace violence includes:

• threatening behaviour – such as shaking fists, destroying property or throwing objects.
• verbal or written threats – any expression of an intent to inflict harm.
• harassment – any behaviour that demeans, embarrasses, humiliates, annoys, alarms or verbally abuses a person and that is known or would be expected to be unwelcome. This includes words, gestures, intimidation, bullying, or other inappropriate activities.
• verbal abuse – swearing, insults or condescending language.
• physical attacks – hitting, shoving, pushing or kicking.
• Rumours, swearing, verbal abuse, pranks, arguments, property damage, vandalism, sabotage, pushing, theft, physical assaults, psychological trauma, anger-related incidents, rape, arson and murder are all examples of workplace violence.

Workplace violence is not limited to incidents that occur within a traditional workplace. Work-related violence can occur at off-site business-related functions (conferences, trade shows), at social events related to work, in clients’ homes or away from work but resulting from work (a threatening telephone call to your home from a client).

What work-related factors increase the risk of violence?

Certain work factors, processes, and interactions can put people at increased risk from workplace violence. Examples include:

• working with the public.
• handling money, valuables or prescription drugs (e.g. cashiers, pharmacists).
• carrying out inspection or enforcement duties (e.g. government employees).
• providing service, care, advice or education (e.g. health care staff, teachers).
• working with unstable or volatile persons (e.g. social services, or criminal justice system employees).
• working in premises where alcohol is served (e.g. food and beverage staff).
• working alone, in small numbers (e.g. store clerks, real estate agents), or in isolated or low traffic areas (e.g. washrooms, storage areas, utility rooms).
• working in community-based settings (e.g. nurses, social workers and other home visitors).
• having a mobile workplace (e.g. taxicab).working during periods of intense organizational change (e.g. strikes, downsizing).

Risk of violence may be greater at certain times of the day, night or year; For example,

• late hours of the night or early hours of the morning,
• tax return season,
• overdue utility bill cut-off dates,
• during the holidays,
• pay days,
• report cards or parent interviews, and
• performance appraisals.

Risk of violence may increase depending on the geographic location of the workplace; for example,

• near buildings or businesses that are at risk of violent crime (e.g. bars, banks).
• in areas isolated from other buildings or structures.

Which occupational groups tend to be most at risk from workplace violence?

Certain occupational groups tend to be more at risk from workplace violence. These occupations include:

• health care employees,
• correctional officers,
• social services employees,
• teachers,
• municipal housing inspectors,
• public works employees, and
• retail employees.

How do I know if my workplace is at risk?

• Review any history of violence in your own workplace.
• Ask employees about their experiences, and whether they are concerned for themselves or others.
• Review any incidents of violence by consulting existing incident reports, first aid records, and health and safety committee records.
• Determine whether your workplace has any of the risk factors associated with violence.
• Conduct a visual inspection of your workplace and the work being carried out. Focus on the workplace design and layout, and your administrative and work practices.
• Evaluate the history of violence in similar places of employment.
• Obtain information from any umbrella organizations with which you are associated; e.g., your industry association, workers’ compensation board, occupational health and safety regulators or union office.
• Seek advice from local police security experts.
• Review relevant publications.
• Collect newspaper or magazine clippings relating to violence in your industry.
• Contact legislative authorities to determine if specific legislation regarding workplace violence prevention applies to your workplace.
• Organize and review the information you have collected. Look for trends and identify the occupations and locations that you believe are most at risk. Record the results of your assessment. Use this document to develop a prevention program with specific recommendations for reducing the risk of violence within your workplace.

What can I do to prevent violence in my workplace?

The most important component of any workplace violence prevention program is management commitment. Management commitment is best communicated in a written policy. The policy should:

• be developed by management and employee representatives.
• apply to management, employee’s, clients, independent contractors and anyone who has a relationship with your company.
• define what you mean by workplace violence in precise, concrete language.
• provide clear examples of unacceptable behaviour and working conditions.
• state in clear terms your organization’s view toward workplace violence and its commitment to the prevention of workplace violence.
• precisely state the consequences of making threats or committing violent acts.
• outline the process by which preventive measures will be developed..
• encourage reporting of all incidents of violence.
• outline the confidential process by which employees can report incidents and to whom.
• assure no reprisals will be made against reporting employees.
• outline the procedures for investigating and resolving complaints.
• describe how information about potential risks of violence will be communicated to employees.
• make a commitment to provide support services to victims of violence.
• offer a confidential Employee Assistance Program (EAP) to allow employees with personal problems to seek help.
• make a commitment to fulfil the violence prevention training needs of different levels of personnel within the organization.
• make a commitment to monitor and regularly review the policy.
• state applicable regulatory requirements.

What are some advantages of having a written policy about workplace violence, harassment and other unacceptable behaviour?

A written policy will inform employees about:

• what behaviour (e.g., violence, intimidation, bullying, harassment, etc.) that management considers inappropriate and unacceptable in the workplace,
• what to do when incidents covered by the policy occur, and
• contacts for reporting any incidents.
• It will also encourage employees to report such incidents and will show that management is committed to dealing with incidents involving violence, harassment and other unacceptable behaviour. Some employers caring to exceed “minimum” requirements in legislation include “personal harassment” in their anti-harassment policies. Personal harassment does fall under the definition of harassment – unwelcome behaviour that demeans, embarrasses, or humiliates a person; however, it is not covered by human rights legislation dealing with harassment related to race, ethnic origin, religion, sex, etc.

Can you give me some examples of preventive measures?

Preventive measures generally fall into three categories, workplace design, administrative practices and work practices.

Workplace design considers factors such as workplace lay-out, use of signs, locks or physical barriers, lighting, and electronic surveillance. Building security is one instance where workplace design issues are very important. For example, you should consider:

• Positioning the reception area or sales or service counter so that it is visible to fellow employees or members of the public passing by.
• Positioning office furniture so that the employee is closer to a door or exit than the client and so that the employee cannot be cornered.
• Installing physical barriers, e.g. pass-through windows or bullet-proof enclosures.
• Minimizing the number of entrances to your workplace.
• Using coded cards or keys to control access to the building or certain areas within the building.
• Using adequate exterior lighting around the workplace and near entrances.
• Strategically placing fences to control access to the workplace.

Administrative practices are decisions you make about how you do business. For example, certain administrative practices can reduce the risks involved in handling cash. You should consider:

• Keeping cash register funds to a minimum.
• Using electronic payment systems to reduce the amount of cash available.
• Varying the time of day that you empty or reduce funds in the cash register.
• Installing and using a locked drop safe.
• Arranging for regular cash collection by a licensed security firm.

Work practices include all the things you do while you are doing the job. People, who work away from a traditional office setting, for example real estate agents or home care providers, can adopt many different work practices that will reduce their risk. For example,

• Prepare a daily work plan, so that you and others know where and when you are expected somewhere.
• Identify a designated contact at the office and a back-up.
• Keep your designated contact informed of your location and consistently adhere to the call- in schedule.
• Check the credentials of clients.
• Use the buddy system, especially when you feel your personal safety may be threatened.
• DO NOT enter any situation or location where you feel threatened or unsafe.

Is there specific workplace violence prevention legislation?

Most Canadian jurisdictions have a general duty provision in their Occupational Health & Safety legislation, which requires employers to take all reasonable precautions to protect the health and safety of employees.

Jurisdictions in Canada that have specific workplace violence prevention regulations include Alberta, British Columbia, Saskatchewan, Manitoba, Ontario, Nova Scotia, Newfoundland and Labrador and Prince Edward Island, as well as Canadian federally regulated workplaces (for those organizations that fall under the Canada Labour Code, Part II). Quebec has legislation regarding psychological harassment, which may include forms of workplace violence. Many jurisdictions also have working alone regulations, which may have some implications for workplace violence prevention. Ontario also has specific harassment legislation.

Where can I find more information about workplace violence?

CCOHS has produced a pocket guide called Violence Prevention in the Workplace. This guide is written for anyone who wants to learn about workplace violence and its prevention. It is especially useful to individuals involved in the development and implementation of workplace violence prevention programs.

CCOHS also created three e-learning courses based on the best-selling pocket guide. These e-courses are titled:

Violence in the Workplace: Awareness (FREE)

Violence in the Workplace: Recognize the Risk & Take Action

Violence in the Workplace: Establish a Prevention Program

From the Canadian Centre for Occupational Health and Safety website. Used by permission http://www.ccohs.ca/oshanswers/psychosocial/violen…

What is workplace bullying?

Bullying is usually seen as acts or verbal comments that could mentally hurt or isolate a person in the workplace. Sometimes, bullying can involve negative physical contact as well. Bullying usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people. It has also been described as the assertion of power through aggression.

Is bullying a workplace issue?

Currently there is little occupational health and safety legislation in Canada that specifically deals with bullying in the workplace. Quebec legislation includes psychological harassment in the Act Respecting Labour Standards. Some jurisdictions have legislation on workplace violence in which bullying is included. In addition, employers have a general duty to protect employees from risks at work. This duty can mean both physical harm and mental health. Many employers choose to address the issue of bullying as both physical and mental harm can cost an organization.

In general, there will be differences in opinion and sometimes conflicts at work. However, behaviour that is unreasonable and offends or harms any person should not be tolerated.

What are examples of bullying?

While bullying is a form of aggression, the actions can be both obvious and subtle. It is important to note that the following is not a checklist, nor does it mention all forms of bullying. This list is included as a way of showing some of the ways bullying may happen in a workplace. Also remember that bullying is usually considered to be a pattern of behaviour where one or more incidents will help show that bullying is taking place.

Examples include:

• spreading malicious rumours, gossip, or innuendo that is not true
• excluding or isolating someone socially
• intimidating a person
• undermining or deliberately impeding a person’s worth
• physically abusing or threatening abuse
• removing areas of responsibilities without cause
• constantly changing work guidelines
• establishing impossible deadlines that will set up the individual to fail
• withholding necessary information or purposefully giving the wrong information
• making jokes that are obviously offensive by spoken word or email
• intruding on a person’s privacy by pestering, spying or stalking
• assigning unreasonable duties or workload which are unfavourable to one person (in a way that creates unnecessary pressure)
• underwork – creating a feeling of uselessness
• yelling or using profanity
• criticising a person persistently or constantly
• belittling a person’s opinions
• unwarranted (or undeserved) punishment
• blocking applications for training, leave or promotion
• tampering with a person’s personal belongings or work equipment.

It is sometimes hard to know if bullying is happening at the workplace. Many studies acknowledge that there is a fine line between strong management and bullying. Comments that are objective and are intended to provide constructive feedback are not usually considered bullying, but rather are intended to assist the employee with their work.

If you are not sure an action or statement could be considered bullying, you can use the reasonable person test. Would most people consider the action unacceptable?

How can bullying affect an individual?

People who are the targets of bullying may experience a range of effects. These reactions include:

• shock
• anger
• feelings of frustration and/or helplessness
• increased sense of vulnerability
• loss of confidence
• physical symptoms such as
• inability to sleep
• loss of appetite
• psychosomatic symptoms such as
• stomach pains
• headaches
• panic or anxiety, especially about going to work
• family tension and stress
• inability to concentrate, and
• low morale and productivity.

How can bullying affect the workplace?

Bullying affects the overall health of an organization. An unhealthy workplace can have many effects. In general these include:

• increased absenteeism
• increased turnover
• increased stress
• increased costs for employee assistance programs (EAPs), recruitment, etc.
• increased risk for accidents / incidents
• decreased productivity and motivation
• decreased morale
• reduced corporate image and customer confidence, and
• poorer customer service.

What can you do if you think you are being bullied?

If you feel that you are being bullied, discriminated against, victimized or subjected to any form of harassment:

DO

FIRMLY tell the person that his or her behaviour is not acceptable and ask them to stop. You can ask a supervisor or union member to be with you when you approach the person.

KEEP a factual journal or diary of daily events. Record:

• The date, time and what happened in as much detail as possible
• The names of witnesses.
• The outcome of the event.

Remember, it is not just the character of the incidents, but the number, frequency, and especially the pattern that can reveal the bullying or harassment.

KEEP copies of any letters, memos, e-mails, faxes, etc., received from the person.

REPORT the harassment to the person identified in your workplace policy, your supervisor, or a delegated manager. If your concerns are minimized, proceed to the next level of management.

DO NOT

DO NOT RETALIATE. You may end up looking like the perpetrator and will most certainly cause confusion for those responsible for evaluating and responding to the situation.

What can an employer do?

The most important component of any workplace prevention program is management commitment. Management commitment is best communicated in a written policy. Since bullying is a form of violence in the workplace, employers may wish to write a comprehensive policy that covers a range of incidents (from bullying and harassment to physical violence).

A workplace violence prevention program must:

• be developed by management and employee representatives;
• apply to management, employee’s, clients, independent contractors and anyone who has a relationship with your company;
• define what you mean by workplace bullying (or harassment or violence) in precise, concrete language;
• provide clear examples of unacceptable behaviour and working conditions; state in clear terms your organization’s view toward workplace bullying and its commitment to the prevention of workplace bullying;
• precisely state the consequences of making threats or committing acts;
• outline the process by which preventive measures will be developed;
• encourage reporting of all incidents of bullying or other forms of workplace violence;
• outline the confidential process by which employees can report incidents and to whom;
• assure no reprisals will be made against reporting employees;
• outline the procedures for investigating and resolving complaints;
• describe how information about potential risks of bullying/violence will be communicated to employees;
• make a commitment to provide support services to victims;
• offer a confidential Employee Assistance Program (EAP) to allow employees with personal problems to seek help;
• make a commitment to fulfil the prevention training needs of different levels of personnel within the organization;
• make a commitment to monitor and regularly review the policy;
• state applicable regulatory requirements, where possible.

What are some general tips for the workplace?

DO

ENCOURAGE everyone at the workplace to act towards others in a respectful and professional manner.

HAVE a workplace policy in place that includes a reporting system.

EDUCATE everyone that bullying is a serious matter.

TRY TO WORK OUT solutions before the situation gets serious or “out of control”. EDUCATE everyone about what is considered bullying, and whom they can go to for help. TREAT all complaints seriously, and deal with complaints promptly and confidentially.

TRAIN supervisors and managers in how to deal with complaints and potential situations. Encourage them to address situations promptly whether or not a formal complaint has been filed.

HAVE an impartial third party help with the resolution, if necessary.

DO NOT

DO NOT IGNORE any potential problems.

DO NOT DELAY resolution. Act as soon as possible.

(Adopted from the Wellness in the Workplace Guide. CCOHS) Used by permission.

Canadian Centre for Occupational Health and Safety, http://www.ccohs.com/oshanswers/psychosocial/bullying.html