1. Employment and Labour
Law
SEMINARS | 2013

2. Sticks and Stones: An Update on Workplace Bullying
Come gather 'round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You'll be drenched to the bone
If your time to you
Is worth savin'
Then you better start swimmin'
Or you'll sink like a stone
For the times they are a-changin'...
Bob Dylan “The Times They Are A-changing”
2

3. Our Objectives
Encourage you to consider and discuss these issues,
openly, frankly and without pre-judgement:
• Why it matters
• What it is (and isn’t)
• How to recognize and prevent it
3

4. Your Objectives
Whether you are an employer, manager/supervisor or
regular worker, do not be (or seem to be):
• A bully
• Ignoring a bully
• Enabling or encouraging a bully
• A victim of bullying
4

5. Practical Challenges
• Analogous to dealing with sexual harassment 25 years
ago
• Similar challenges as when dealing with disability
accommodation
• A spectrum of behaviour with no clear consensus about
the boundaries of the definition
• The moving targets of political correctness and social
norms
5

6. Why Does it Matter?
Workplace bullying has both a human and economic
cost.
In the short-term, mid-term and long-term, workplace
bullying affects:
• the victim and his/her family and co-workers
• workplace productivity and turnover
• your customers and stakeholders
• the bottom line
• quality of life
6

7. The Legal Risks
• The employer is legally required to establish a policy and program to prevent
harassment and violence in the workplace – Occupational Health and Safety Act
• Working conditions giving rise to a likelihood of physical injury can be a criminal
offense – Criminal Code, s.217.1
• Officers and Directors can be personally culpable under the OHSA and the Criminal
Code
• Many forms of harassment constitute breaches of the Ontario Human Rights Code
• These issues can be grieved under collective agreements
• Persistent episodes of harassment giving rise to psychological or physical injury can
constitute compensable claims under the Workplace Safety and Insurance Act
7

8. The Legal Issues
• The common law of negligence places a duty on employers to provide a safe
workplace
• Common law also gives a party a right to sue for other types of wrongs, such as
assault and battery or intentional infliction of emotional distress
• Employers can face constructive dismissal claims where bullying causes an employee
to quit
• Employers can be held vicariously liable for the wrongful acts of employees
• An employer and a supervisor can be held liable for damages caused to a worker as a
result of workplace bullying or harassment
• Employers must take every reasonable precaution to protect the health and safety of
workers (under the Occupational Health and Safety Act)
8

9. The Costs
• Effects on worker and co-workers:
• lower levels of job satisfaction
• blocked or delayed career progression
• psychosomatic symptoms and physical illness
• short and long term disability
• Signs and symptoms of workplace bullying may include:
• grievances by employees against their manager
• declining work performance
• increased stress and tension in the workplace
• poor morale
• increased absenteeism
• high staff turnover
9

10. A Worst Case Scenario – The Walmart Case
Boucher v Walmart – $1.46 Million in Damages Awarded for Walmart’s Failure to Prevent
and Address Workplace Bullying
On October 10, 2012, a jury awarded the highest award to date for an employment related suit in
Canada. A total of $1.46 million was awarded to Meredith Boucher, an ex-employee of Walmart
who held an excellent ten year employment record with the company before she left in late 2009.
The jury found that she was constructively dismissed when she was forced to leave after suffering
more than six months of demeaning verbal abuse at the hands of her store manager, Jason
Pinnock. Boucher had made repeated complaints to Walmart’s district manager about the
harassment she suffered and was advised her complaints did not warrant further consideration
after meeting with a committee of three senior managers.
Walmart was found directly liable for $1.2 million in damages for intentional infliction of mental
suffering and punitive damages, and $10,000 for not adequately addressing two assaults Ms.
Boucher suffered at the hands of a fellow assistant manager. Pinnock is liable for the remainder of
the award, but if Boucher cannot recover from Pinnock, Walmart will be liable for his portion as
well. Walmart has appealed.
10

11. Workplace Bullying Defined
Workplace bullying covers a broad spectrum of problematic behaviours.
Workplace bullying can include:
• harassment or poisoned work environment
• physical violence, sexual violence and threats of violence
• reprisals
The Occupational Health and Safety Act defines workplace harassment as engaging in a course of
vexatious comment or conduct against a worker, in a workplace – behaviour that is known or ought
reasonably to be known to be unwelcome
• Comments or conduct typically happen more than once (patterns, persistence)
• May occur over a relatively short period of time or over longer period of time
• Typically offensive, embarrassing, humiliating or demeaning
• May intimidate, isolate or even discriminate against the targeted individual
11

12. Workplace Bullying Defined
As with Human Rights forms of harassment and discrimination,
malicious intention is relevant but not a necessary element and not
determinative.
The effect is what matters, not intent of the perpetrator.
Since an ounce of prevention is worth a pound of cure, we want to
focus on understanding what bullying is (and isn’t).
12

13. Workplace Bullying Defined
Sticks and stones: bullying with words is very common.
• Tone of voice (sarcasm, fake concern)
• Remarks, jokes, innuendo
• Chronic “call-outs” on trivial work performance issues
• Gossip
• Criticism, belittling, ridicule
13

14. Workplace Bullying Defined
But workplace bullying is not just accomplished through words. As with
Human Rights forms of harassment and discrimination, there is a broad
range of conduct.
Some bullying conduct is obvious:
• gestures (eye-rolls)
• embarrassing practical jokes
• pictures, images
• unnecessarily loud and/or public criticisms
14

15. Workplace Bullying Defined
But bullying conduct can be subtle ...even silent.
• Undermining authority
- second-guessing, overruling,
- removing responsibilities without good reason
- pointedly overpraising/promoting others
• Sidelining/marginalizing/dismissing
• Isolating/excluding from work-related meetings, dialogues and opportunities
• Social exclusion
• Silent treatment
• Setting unrealistic goals/workload/deadlines
• Changing goals/deadlines without good reason/warning
• Denying information or resources or support required to get the job done
• Plagiarism, copying
• Taking credit for other’s work or denying credit and rewards (positive evaluations, recognition,
compensation, opportunities)
• Excessive or unusual monitoring/supervision (micro-managing)
15

16. The Effect of Workplace Culture
Employers may unwittingly encourage or enable bullying behaviour
by:
• pitting workers against each other or promoting a highly
competitive work style
• lax management
• setting/allowing unreasonable demands/deadlines
• failing to give supervisors the authority to reprimand problem
workers
• providing insufficient funding to accomplish a goal
16

17. The Effect of Perception and Personalities
Perception, experience and personality “frame” the issue differently
for each individual involved.
You need to be aware of:
• varying management styles (tough love vs. kids gloves)
• varying levels of training and “people management” skills
• the subjective/objective divide or disconnect
• the “thin-skull” employee
It can be hard for some people to distinguish differences in opinion
or fair criticism from bullying. It can also be hard for some people to
provide appropriate feedback without bullying.
17

18. What Isn’t Bullying?
A supervisor's conduct in discharge of his or her normal
supervisory/managerial duties is not normally bullying, even where it
has "unpleasant consequences" for the employee.
For example, a fair but blunt and unflattering assessment of an
employee’s performance and reasonable demands that he or she
fulfill the work expectations or risk discipline is NOT bullying.
Unless…the message, the means of delivery, or the time and place
are ill-suited to the individuals and the circumstances.
18

19. What Isn’t Bullying?
Most commonly, people will misconstrue normal work activity and
management action as “bullying” where:
• they are not accustomed to direction, or to direct communications
• there has been no preparation for the communication
• they are particularly sensitive, feel isolated or insecure
• they feel vulnerable at work, due to recurring work issues
• the manner (or time and place) in which the message is delivered is
unnecessarily abrupt, dismissive, or inconsiderate of the person’s
feelings
19

20. Open, Frank and Respectful Communications
Is this communication or action:
• fair?
• respectful (even if blunt)?
• necessary?
• reasonable?
• appropriate (justifiable)?
• proportionate?
• productive?
• designed to serve a legitimate workplace goal?
Is this the right time?
Is this the right place?
Is this the right means of delivery?
Who else legitimately needs to know/see/hear this?
20

21. Open, Frank and Respectful Communications
• People can have honest, serious disagreements about issues and questions
• They can debate and differ, all in good faith
• Supervisors/managers can critique work and assess performance
All of this is appropriate, and in fact, it is very necessary.
• Each individual employee needs to understand there is a legitimate purpose
to open, frank and respectful communication
• And each individual employee needs to understand that there is a line which
should not be crossed
21

22. Crossing the Line
Communications (or non-communications) or actions which:
• demean, denigrate or insult
• challenge character and integrity, without purpose or proof
• reference/focus on personal characteristics or vulnerabilities
• shun, isolate and diminish the value of a person’s contribution and
participation
• intimidate (bully) or coerce
• unfairly describe or evaluate a person’s work or overall performance,
or threaten to
• harass and threaten
• cross the line.
22

23. What Is Your Anti-Bullying Strategy Trying to Foster?
• An understanding of the issues and challenges
• Insight
• Self-awareness
• Courtesy and decency
• Honesty
• Respectfulness
• A more positive and effective workplace
23

24. Make the Commitment
Learn, understand, and educate your workforce.
Prevent workplace bullying with a multi-prong strategy of:
• education and (re)conditioning
• training
• strong written policies and effective practices
• willing and timely and appropriate enforcement
When you cannot prevent, then willingly and in a timely way:
• investigate
• address and redress
• re-educate.
24

25. Thank You
David Law Melanie Polowin
Tel: 613-783-8829 Tel: 613-786-0244
Email: david.law@gowlings.com Email: melanie.polowin@gowlings.com
montréal  ottawa  toronto  hamilton  waterloo region  calgary vancouver  beijing  moscow  london