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Do You Really Have Zero Tolerance for Bullying and Harassment? Your Answer May be Costly

Workplace harassment is once again in the news given our former Governor General’s resignation from her post after a 132 page investigation report was issued following accusations of a toxic work environment at Rideau Hall.

While the Government of Canada took the correct steps in hiring an independent investigator once the allegations surfaced, meeting with all witnesses, and then meeting with Ms. Payette following the issuing of the report, the question arises as to what the government should have done as the employer to prevent this situation from occurring in the first place.

Many employers will say they have “zero tolerance” for bullying and harassment in the workplace, but without bringing this policy to employees’ attention, training employees on the policy, and advising employees in no uncertain terms of the consequences of a breach (including the potential for disciplinary consequences), such a policy may have little effect.

Perhaps following such advice, newly inaugurated U.S. President Joe Biden recently made the following public statement about hostile workplaces within days of Julie Payette’s resignation:

I'm not joking when I say this: If you're ever working with me and I hear you treat another with disrespect, talk down to someone, I promise you I will fire you on the spot…On the spot. No if, ands, or buts.

WorkSafeBC requires employers in British Columbia to ensure there are policies and procedures in place for responding to complaints of bullying and harassment, which should aim to fully address incidents and ensure that such conduct is minimized in the future. Having a policy in place however, is not enough on its own, and the consequences of failing to properly take preventive measures or address workplace bullying and harassment can be extremely costly to employers.

In addition to occupational health and safety regulatory requirements, properly addressing and preventing bullying and harassment is required for human rights purposes. Again, the consequences of failing to properly address incidents of bullying and harassment, particularly where those incidents touch on personal characteristics protected by human rights legislation, can be very costly, and the recent trend in potential employer liability is ticking upward.

The BC Human Rights Tribunal recently issued a decision which exceeds previous awards for injury to dignity, as well as a providing a large wage loss award (Francis v. BC Ministry of Justice (No. 5), 221 BCHRT 16). The Tribunal in Francis found that the nature of the discrimination faced by the complainant was serious and the comments and actions by his coworkers “struck at the core of [his] identity and feelings of self-worth and emotional well-being.” The workplace conduct in the Francis decision resulted in the complainant becoming “seriously ill from a psychiatric point of view.” The result was the following award for compensation for the contraventions of the Human Rights Code:

(a) $264,060 as compensation for past loss of earnings;

(b) $431,601 as compensation for future loss of earnings;

(c) $65,881 as compensation for pension loss

(d) $1,140 as compensation for expenses;

(e) $25,515.24 as compensation for disbursements; and

(f) $176,000 for injury to dignity, feelings and self-respect.

Although the award for injury to dignity damages in the Francis case represents the high-water mark, the amount signifies that the Tribunal is prepared to take stringent measures to compensate victims of discrimination and sanction employers that have not adequately protected their employees from such treatment.

British Columbia employers are required to review and update their bullying and harassment policies and procedures at least annually to ensure they are consistent with current regulatory requirements and responsive to lessons learned from any incidents that may have been reported in the workplace. As it is a new year, and in light of the recent media attention workplace bullying and harassment has received, now is a good opportunity for employers to review and update their bullying and harassment policies and procedures.

The lawyers in Lawson Lundell’s Labour, Employment, and Human Rights Group are experienced in developing and revising bullying and harassment and anti-discrimination policies, as well as in conducting harassment investigations in circumstances that warrant third-party investigation. Please contact a member of our group if your business requires assistance in respect of developing or complying with legal obligations in respect of preventing and addressing workplace bullying, harassment, and discrimination.

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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