Quebec rules protect workers from psychological harassment
In June, the right to work in an environment free from psychological harassment becomes a minimum standard of employment in Quebec.
That means employers will be required to take appropriate measures to ensure this right is respected.
This right extends to all employees. From the probationary employee to the senior manager, therefore, anyone can access the newly created recourse by filing a complaint within 90 days of the harassment. Once the complaint is filed, the employee may go back as far in time as necessary to make his case.
The provision dealing with psychological harassment in the workplace was introduced in December 2002, along with other changes to the Labour Standards Act, and comes into force June 1. Although the issue of workplace harassment or abuse is not new and has been dealt with by arbitrators, other statutory tribunals or by the civil courts in a number of circumstances, the provisions of the act are likely to have a substantial impact upon employers and employees alike in Quebec.
Psychological harassment defined
For the purposes of the act, psychological harassment has been defined at section 81.18 as: “…any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.
“…A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.”
According to this definition, the key elements that constitute psychological harassment are:
•Vexatious behaviour: The act refers to a conduct that becomes humiliating or abusive for the victim of harassment. Maliciousness or intent to harm are not prerequisites and will not constitute determining factors.
•Repetition: When the unwanted comments, gestures or actions are repeated over time and viewed cumulatively rather than in isolation, the conduct can become vexatious and constitute harassment.
•Hostility or unwanted conduct: Either the conduct may be reasonably characterized as hostile or aggressive towards the employee, or the employee will need to show he has expressed some form of disagreement with the conduct. The refusal or disagreement need not be stated expressly but could be inferred from the circumstances.
•Effect on an employee’s dignity or psychological or physical integrity: As in any other form of harassment, psychological harassment diminishes an individual’s self-esteem or integrity.
•Harmful work environment for the employee: This can refer to an environment where the employee is isolated or excluded, subject to intimidation, excessive control, or excessive stress, etc. A number of situations could be characterized as constituting a harmful work environment.
•An isolated incident: It may also constitute harassment if it is sufficiently serious and if there are lasting harmful effects.
As such, this definition of psychological harassment is wide enough to encompass all types of undesired conduct in the workplace, including abusive exercises of authority. It is also sufficiently wide to include other forms of prohibited harassment (sexual, racial, religious, political, etc.). This may mean that instead of turning to human rights legislation and the available recourses there, employees in Quebec could eventually seek to enforce these rights through the newly created recourse.
It is likely that the standard of review for the alleged conduct will be that of a “reasonable, objective and well-informed person” placed in similar circumstances to that raised by the complainant. At least, this is the view expressed by Robert L. Rivest, chief legal counsel for the Labour Standards Commission in a text he prepared in November, “Les nouvelles normes de protection en cas d’harcèlement psychologique.”
Harassment-free work environment
Section 81.19 of the act provides both for the rights of an employee and for the obligation of the employer as follows:
…Every employee has a right to a work environment free from psychological harassment.
…Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.
The right to a harassment-free work environment not only means an employee should not be subjected to harassment from superiors and managers, but he is entitled to work without harassment from his colleagues, clients or third parties he deals with in the course of his employment. The employer thus assumes responsibility for the actions of one employee towards another.
It should also be noted that the provisions of the act dealing with psychological harassment apply to all employees, without exclusion. Therefore, even probationary employees or senior managers can avail themselves of the provisions of the act.
The employer’s duty under the act is two-fold: it must take reasonable steps to prevent psychological harassment and, if such is brought to its attention, to have it stopped. This obligation is consistent with that imposed upon employers in matters of sexual harassment and other forms of discriminatory harassment. It is further consistent with the employer’s general obligation under the Civil Code of Quebec, which provides that an employer is bound “… to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee.”
To meet this obligation, the first and foremost step that should be taken is to create a policy against psychological harassment. Employers can either introduce such a policy, or amend current policy on sexual and discriminatory harassment to include and incorporate psychological harassment.
As with other policies, the policy against psychological harassment should be expressed in clear and simple terms. It should provide for an internal complaint and investigative procedure, as well as advise that the policy will be enforced through appropriate sanctions. Lastly, in order to ensure effectiveness, the policy should be well-circulated or communicated within the workplace.
Other means of prevention to be considered along with a written policy could include information sessions or training on psychological harassment.
Recourse
Any employee who believes he has been the victim of psychological harassment may file a complaint in writing with the Labour Standards Commission within 90 days of the last alleged incident of harassment. The complaint may also be filed, with the employee’s consent and on his behalf, by a non-profit organization. Once the complaint is filed in a timely manner, the employee may go as far back in time as necessary to make his case.
Typically, complaints of unfair employment practices covered under the act are referred to a hearing without an inquiry. However, a complaint of psychological harassment shall be promptly investigated by the commission. In its investigation, the commission may request any information or document relevant to its inquiry.
Should the commission conclude that the facts do not support a finding of harassment, or that the complaint is frivolous or made in bad faith, it may refuse to take action. However, this decision is not final and binding. An employee may nonetheless request that his complaint be referred to the Labour Relations Commission — the administrative tribunal charged with the application of the Quebec Labour Code and the adjudication of the various unfair employment practices complaints under the Labour Standards Act — for adjudication.
During the investigative phase, the Labour Standards Commission may, with the parties’ consent, request the appointment of a mediator. If the employment relationship is still active, the employee will be deemed at work during the mediation sessions and therefore entitled to salary.
At the conclusion of the investigation, if no settlement has been reached, the complaint is referred to a hearing before the Labour Relations Commission. The complainant will be entitled to legal representation by the commission’s lawyers.
The hearing will proceed before the Labour Relations Commission in the manner of all other matters it hears, with the same applicable rules of evidence and procedure. However, there is no reverse onus provision, which means that the complainant will bear the burden of proof.
Upon a reading of section 123.15, for the complaint to be allowed, the Labour Relations Commission must make a dual finding that the employee has been the victim of psychological harassment and that the employer has failed to take reasonable preventive action or to have the harassment ceased once it was brought to the employer’s attention.
The remedial powers granted to the Labour Relations Commission are broad. In addition to rendering any decision believed fair and reasonable when taking into account all the circumstances of the matter, the Labour Relations Commission may order:
•the employee be reinstated;
•the employee be paid an indemnity up to the maximum equivalent of lost wages;
•the employer to take reasonable action to put a stop to the harassment;
•the employer to pay punitive and moral damages to the employee;
•the employer to pay the employee an indemnity for loss of employment;
•the employer to pay the costs of psychological support needed by the employee for a period of time as determined by the commission; or
•the employer to modify the disciplinary record of the employee.
In accordance with its general powers, the Labour Relations Commission may also make any interim order it considers appropriate to safeguard the rights of a party.
Because a finding must be made that the employer has failed to meet his obligation under section 81.19 of the act, the means of prevention put into place by the employer can become important factors in the assessment of liability. The adoption of a policy or other means of prevention will not constitute a bar to a complaint but could weigh heavily in the outcome.
Employment injury
If as a result of psychological harassment, the employee suffers from an employment injury as determined under the Industrial Accidents and Occupational Diseases Act, the Labour Relations Commission is no longer entitled to order payment for lost wages, payment of moral or punitive damages nor payment for psychological support. All other remedies remain applicable.
Unionized employees
By virtue of section 81.20 of the act, the provisions of sections 81.18 (definition), 81.19 (rights and obligations), 123.7 (90 day time limit), 123.15 (remedial powers) and 123.16 (employment injury) will be deemed incorporated into every collective agreement with the necessary modifications.
Thus, the exclusive recourse of the employee (save and except an employment injury) will be under the collective agreement, with an amended 90-day time limit to file the grievance. The remedial powers of the arbitrator will be same as that of the Labour Relations Commission.
However, the parties may, at any time before the matter is taken under advisement, jointly request mediation.
Coming into force
As already stated, these provisions of the Labour Standards Act will come into force on June 1, 2004, including the recourse provisions. Theoretically, complaints could be filed June 1, alleging an incident occurred 90 days previously. Further, once the complaint is timely filed, the employee can go as far back in time as necessary to support his allegations. By this very fact, employers would be well served to immediately put into place reasonable preventive measures to ensure a harassment-free work environment.
Louise Béchamp is a lawyer specializing in labour law at the Montreal office of Fasken Martineau DuMoulin. She may be contacted at [email protected] or (514) 397-7573.
