November 20, 2013

The Impact of Bullying and Harassment in a Safety-Sensitive Work Environment

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Bullying and harassment in the school system, in the workplace and online has been receiving significant attention in the media over the past few years, but unfortunately, what constitutes bullying or harassment is generally not well understood.

Bullying and harassment has been defined as:

"Any behavior that demeans, embarrasses, humiliates, annoys or abuses a person and that is known or reasonably expected to be unwelcome. It can be verbal, emotional, psychological, physical, sexual, religious or racial. It includes gestures, comments (verbal or written), intimidation, bullying or other inappropriate activities. It may even include gossiping. It may include giving someone the "silent treatment" or excluding a fellow employee from activities. The harassing behavior may actually be indirect, such as generating and spreading rumours about a co-worker."

Bullying or harassment of employees by an employer, manager or fellow employee of the victim may create a "poisoned" work environment supporting a claim for constructive dismissal, or where related to a prohibited ground of discrimination under the Human Rights Act could result in a human rights complaint. It is even arguable that bullying or harassment, particularly in a safety sensitive workplace, could result in a violation of the employer’s general duty to protect the health, safety and welfare of its workers under the Occupational Health and Safety Act.

Such claims can create significant financial liability for the employer, have a dramatic negative impact on morale and productivity and can hinder an employer’s ability to recruit and retain its necessary working forces.

Generally speaking, bullying and harassment are not compensable under the Workplace Health, Safety and Compensation Act in Newfoundland and Labrador and compensation for mental distress under the Act is only available where disability develops as an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. Examples include: when an employee witnesses a fatality, is the victim of an armed robbery or has been subjected to physical violence or death threats.

The Ontario Superior Court of Justice has determined that not only is an employer obliged to not treat an employee in a manner that renders competent work performance impossible or continued employment intolerable, an employer has a broader responsibility to ensure that the work environment does not otherwise become so hostile, embarrassing, or forbidding as to have the same effect.

In Bowringer Engineering Ltd. and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 6480 (August 12, 2013), Arbitrator David Alcock considered the discharge of a union official for harassment. The employee who was the victim of the harassment was employed as a Lead Hand Scaffolder within the bargaining unit.

The Lead Hand alleged that the Shop Steward, who was also the Unit Chair of the Union, had harassed him by repeatedly raising unfounded safety concerns about the Lead Hand’s work in the presence of other co-workers and persistently complaining about the nature of the work being performed by the Lead Hand as work outside of the bargaining unit. The Union argued at arbitration that the Shop Steward was merely acting in his capacity as Shop Steward and Unit Chair.

The employer’s Safety Manual contained a written policy prohibiting harassment in the workplace and the Employee Safety Handbook stated that "As part of ensuring a safe and healthy workplace to all its employees, Bowringer Engineering Limited has a policy of zero tolerance toward any employee harassment."

Arbitrator Alcock noted in his decision that to the extent that the nature of the employer’s industrial workplace required significant attention to the safety and well-being of its employees, the emotional stresses and distractions caused by harassment would likely expose a victim of harassment to greater risk of unsafe conditions and that harassment "is a singularly major offence in the Employer’s safety-sensitive workplace".

The Arbitrator found that there was a fundamental disagreement between the employer and the Union with respect to the duties to be performed by the complainant in his capacity as Lead Hand and agreed with counsel for the employer that the issue was one which should have been resolved by arbitration.

Arbitrator Alcock stated that if the Shop Steward believed that management’s actions were wrong, the only acceptable logical course of action open to the Shop Steward was to grieve against management to cease and desist in what he believed was a violation of the collective agreement. In addition, he stated that to persistently pester the Lead Hand in the manner in which he did, repeating the same accusations against the Lead Hand so that he would provide the outcome desired by the Union was abusive and intimidating conduct from which the Union office failed to protect him.

Arbitrator Alcock concluded that the comments by the Shop Steward about safety matters directed at the Lead Hand in the presence of co-workers were designed to publicly embarrass the Lead Hand in an inappropriate forum, rather than raising any issues he may have had through the appropriate safety committee. Further, Mr. Alcock found that a letter circulated by the Shop Steward among bargaining unit personnel, in relation to the Lead Hand’s employment and performance of duties, had a strong element of harassment and that it was reasonable for the Lead Hand to perceive the circulation of the letter by the Shop Steward as a campaign against him to cause him to lose his job. Alcock also concluded that the Shop Steward’s unwelcome, offensive conduct caused the Lead Hand considerable personal stress and anxiety for the security of his job.

Arbitrator Alcock commented that in dealing with bargaining unit members in the workplace, a Shop Steward is not representing the members when he persistently abuses and bullies the individual to accede to his wishes and that the position of Shop Steward and Unit Chair does not shield an individual from being disciplined for harassment against a fellow bargaining unit member.

In light of the fact that there had been no apology and no remorse expressed by the Shop Steward and considering the Shop Steward’s relatively short duration of employment, six years, his substantial record of previous disciplinary action and the lack of rehabilitative potential, the employer’s choice of discharge fell within the range of reasonable disciplinary responses that were available under the circumstances.

There is no doubt that bullying and harassment can have a negative impact on an employer’s operations on many levels, however, there are steps which employers can take to prevent or minimize workplace bullying or harassment.

First, employers should develop a policy statement and take steps to ensure that all individuals within the organization are aware of the policy and what constitutes unacceptable behaviour. Employers should also develop and implement procedures for workers to report incidents and for how the employer will deal with incidents or complaints.

Finally, it is important to train supervisors and workers on recognizing, responding to and reporting bullying and harassment.

Recruitment and retention of skilled tradespeople will become increasingly difficult in the short to medium term as an increasing demand and contracting supply place pressure on recruiters. Many employees look beyond the mere wage being offered and are increasingly concerned with such factors as working conditions and a respectful workplace.

With that in mind, developing and maintaining the right program to encourage a respectful workplace will not only help to avoid employer liability but can also be an important tool in your recruitment plan. Gregory Anthony is a Partner in the St. John’s office of Cox & Palmer and practices primarily management side employment and labour law with significant emphasis on the energy, oil & gas and construction industries.

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