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BILL 14 BULLYING IN THE WORKPLACE - YOUR RESPONSIBILITIES

This bulletin is intended to equip members with information to reduce the likelihood of WorkSafeBC claims due to the Workers Compensation Amendment Act (Bill 14).

Under Bill 14 passed by the provincial government in 2012, employees may be entitled to compensation for a mental disorder that is a reaction to bullying and harassment in the workplace.

As a result, employers must take reasonable steps to eliminate bullying and harassment in the workplace to ensure the health and safety of every employee.   

WHAT IS WORKPLACE BULLYING AND HARASSMENT?

The Canadian Centre for Occupational Health and Safety (CCOHS) defines workplace bullying 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.”

CCOHS defines harassment as “any behaviour that demeans, embarrasses, humiliates, annoys, alarms or verbally abuses a person and that it is known or would be expected to be unwelcome. This includes words, gestures, intimidation, bullying, or other inappropriate activities.”

Examples of bullying and harassment include but are not limited to:

  • Spreading malicious rumours, gossip, or innuendo that is not true.
  • Excluding or isolating someone socially.
  • Intimidating someone.
  • Undermining or deliberately impeding an individual’s work.
  • Physically abusing or threatening abuse.
  • Removing areas of responsibilities without cause.
  • Constantly changing work guidelines or processes.
  • 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 e-mail.
  • Intruding on someone’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).
  • Under-utilizing an individual – creating a feeling of uselessness.
  • Yelling or using profanity.
  • Criticizing someone persistently or constantly.
  • Belittling an individual’s opinions.
  • Unwarranted (or undeserved) punishment.
  • Blocking applications for training, leave or promotion.
  • Tampering with an individual’s personal belongings or work equipment.

It is important to remember that bullying behaviour can be both obvious and subtle and is often characterized by more than one incident.

WHAT IS NOT WORKPLACE BULLYING AND HARASSMENT?

Often, there is a “fine line” between the exercise of management rights and bullying. 

In essence, the exercise of bona fide management of employees does not constitute harassment or 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.

In fact, Bill 14 specifically excludes mental disorders caused by a decision of the employer relating to the employee’s employment including:

a)      A decision to change the work to be performed by the employee;

b)      A decision to change the working conditions;

c)       A decision to discipline the employee; or

d)      A decision to terminate the employee’s employment.

If you are not sure whether an action or a statement could be considered bullying, you can apply the “reasonable person” test, which asks: would most people consider the conduct in question to be acceptable or unacceptable?

WHAT CAN EMPLOYERS DO TO PREVENT BULLYING AND HARASSMENT?

The first step every employer should take to prevent bullying and harassment in the workplace is to establish a Bullying and Harassment Policy. Having a policy will make it easier to eliminate inappropriate workplace conduct that may result in WorkSafeBC mental stress claims against your organization.

You are recommended to focus your efforts on the following:

  • Develop guidelines for responding to bullying and harassment complaints.
  • Provide all staff, including management, with training and education pertaining to workplace bullying and harassment. All employees should be clear about expectations for appropriate behaviour, while supervisors and managers should know how to implement the policy and be able to recognize and control bullying and harassment.
  • Regularly re-assess your workplace for risks of bullying and harassment. Keep up-to-date on occupational health and safety information available.  Maintain best practices and resources referred to on the WorkSafeBC website (such as the anticipated WorkSafeBC Bullying and Harassment Toolkit) and consider policy developments.

Regardless if you have a Bullying and Harassment Policy for your workplace, you still have a duty to maintain the safety of your workplace and to ensure that employees do not engage in “any improper activity or behaviour…that might constitute a hazard.”

CSSEA COLLECTIVE AGREEMENT SEXUAL/PERSONAL/PSYCHOLOGICAL HARASSMENT

Employers should note that the CSSEA Collective Agreements also contain definitions of harassment in Article 29.1 - Sexual Harassment, as well as Article 29.2 - Personal and Psychological Harassment.

The collective agreement also contains Articles 29.3 – 29.6 that establish a Complaints Procedure which must be followed when the situation involves a bargaining unit member harassment complaint. 

WORKSAFEBC DEFINITION OF BULLYING AND HARASSMENT

Employees must NOT engage in the bullying and harassment of other employees.

Bullying and harassment INCLUDES any inappropriate vexatious conduct or comment by a person towards a employee that the person knew or reasonably ought to have known would cause that employee to be humiliated, offended or intimated but EXCLUDES any reasonable action taken by an employer or supervisor relating to the management or direction of employees or the place of employment.

Consistent with its duty under the Workers Compensation Act, the employer should take reasonable steps to address bullying and harassment, including:

1) Perform a risk assessment

Employees are expected to cooperate with the employer as the employer performs a risk assessment that includes a review of:

a)      Any previous incidents of bullying and harassment in the workplace.

b)      The occupation experience in similar workplaces.

c)       The location and circumstances in which work will take place.

d)      The specific characteristics of the workplace including factors such as: the demographics, the culture, the presence of new or young employees. 

e)      Issues that have been raised by: 

  1. a joint health and safety committee; OR
  2. a employee health and safety representative; OR
  3. a joint bullying and harassment committee; OR
  4. a qualified external consultant working with the employer and an appropriate committee; OR
  5. a employee health and safety representative.

2) Develop written policies and procedures to eliminate or prevent bullying and harassment in the workplace

The employer will develop written policies and procedures and make changes to the work environment to eliminate or minimize the risks to employees from bullying and harassment.

Employees are expected to participate as required and conduct themselves in a manner that will eliminate or, if directed, minimize the risk to other employees. 

3) Implement procedures for reporting, documenting, and investigating bullying and harassment complaints or incidents

The employer must develop and implement the following Confidential Reporting Procedures for Investigating and Documenting Complaints or Incidents of Bullying and Harassment:

CSSEA’s Collective Agreement Complaint Procedure

CSSEA’s Collective Agreements contain definitions of harassment in Article 29.1 - Sexual Harassment, as well as Article 29.2 - Personal and Psychological Harassment.

For complaints of harassment involving a bargaining unit employee under these articles employers must follow the complaint procedure outlined in Articles 29.3 – 29.6.

Bill 14 Complaint Procedure

In addition to the collective agreement, Bill 14 has its own definitions of bullying and harassment:

Bullying and harassment includes any inappropriate vexatious conduct or comment by a person towards a employee that the person knew or reasonably ought to have known would cause that employee to be humiliated, offended or intimidated.

To address workplace bullying and harassment under Bill 14 definitions, the following reporting procedure will apply:

  1. The employee will first report the concern to their immediate supervisor; or, where the supervisor is allegedly involved in the bullying and/or harassment, the employee will report directly to the HR Manager; or where the bullying and harassment is alleged to reach into the upper ranks of management, the employee will report directly to the Executive Director; or where the Executive Director is alleged to be involved, the employee will file a complaint with the Chair of the Safety Committee.
  2. For the sake of completeness, clarity and fairness, complaints should be made in writing. However, the employer recognizes that there may be situations where there is an immediate hazard or danger or exigent circumstances which make written reporting unreasonable at the time in light of the requirements of Bill 14. In those cases, the employer will accept the complaint orally and request/require documentation at a later time. 
  3. The employee may report the situation to WorkSafeBC, however, this avenue should be used when other reporting avenues are not appropriate. 
  4. The employer will maintain confidentiality with respect to the rights of those employees involved in the complaint, and disclosure will be consistent with the requirements of natural justice, procedural fairness and/or as required by law.
  5. Once a complaint is received, the employer will conduct an investigation which will include an interview of the complainant and the relevant employees, as determined by the employer following the interview with the Complainant.

4) Review policies and procedures periodically

The employer will continue to conduct periodic reviews of policies and procedures. These reviews may involve input from health and safety committees and from individual employees. Employees are required to participate if directed to do so by the employer and if such participation is required, employees must provide information in good faith and in a timely, honest and forthright manner.

5) Informing employees of risks

The employer will inform employees who may be exposed to the risk factors of workplace bullying and harassment and provide guidance to them. 

If employees report an adverse symptom, illness or injury as a result of bullying and harassment, they should be encouraged to consult a physician of their choice for treatment or referral. 

6) Employee’s duty to inform the employer

There is now an important general duty on all employees. Employees have a positive duty to advise the employer if they become aware of any employee who may be exposed to the risk of bullying and harassment. Failure to report this situation may result in discipline up to and including termination of employment.

SUMMARY OF THE DUTIES OF ALL EMPLOYEES

1. NO bullying or harassment

Each and every employee is prohibited from engaging in bullying and harassment of other employees. Bullying and harassment will not be tolerated. Any employee found to have engaged in the bullying and/or harassment of other employees will be subject to discipline up to and including termination of their employment.

2. Report bullying and harassment

Each and every employee has a positive duty to proactively report workplace bullying and harassment.

This important duty also means that each employee has a duty to tell their supervisor or manager or safety committee chair if they become aware of any employee who may be exposed to the risk of bullying and/or harassment. 

Failure to report this type of situation may result in discipline up to and including termination of employment.

3. Follow workplace policies and procedures

Employees are required to follow the new workplace policies and procedures in addition to the existing policies and procedures. The new workplace policies and procedures will be displayed and will be reviewed. All employees are required to understand and obey these policies and procedures effective immediately.

DRAFT TEMPLATE

For ease of transition, CSSEA has developed a template policy for bullying and harassment. CSSEA HRLR staff are available to assist in the development and implementation of this new policy.

It is important to fully review the policy with all employees and have each employee sign an acknowledgment of their understanding and commitment to comply with it.

The template is available in Word format on CSSEA’s website in the members section in the HRLR section or by visiting http://ow.ly/hVXAv.

For further information, please contact your HRLR Consultant.

A PDF copy of this CSSEA info is available for download here: http://ow.ly/i4IWn.

Communications Contact

Doris Sun
Director of Communications
604.601.3110
604.319.5010
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