Bullying and harassment is a hot topic in employment law circles these days. Are workers being bullied and harassed? How can bullying and harassment be stopped? What can workers do if they witness or experience bullying and harassment? What should the employer do if they receive a report of bullying or harassment? In this article we'll tell you what you need to know, with links to relevant legislation and judicial decisions for those who fancy a trip down a legal rabbit hole.
What is bullying and harassment?
Broadly, bullying is any conduct that the perpetrator knows, or should know, is likely to make the target feel intimidated or humiliated. Think generalized meanness, like a schoolyard bully.
Harassment is generally taken to be unwanted conduct based on a protected characteristic, such as the target’s gender (sexual harassment), race (racist harassment), sexual orientation, religion, and so on. It is not necessarily based on protected characteristics, but this is often the case. The perpetrator may not necessarily intend harm (though they certainly may), but the conduct is unwanted. Harassment could look like unwanted romantic advances, racist jokes, unwelcome physical contact, or any other range of unwanted conduct.
What isn't bullying and harassment?
Bullying and harassment does not include reasonable exercises of managerial authority. A worker may dislike their manager's style. They may not welcome some disciplinary measure their employer imposes on them. This does not mean they are being bullied or harassed. However, where the manager exercises their authority in a way that meets the definition of bullying and harassment, for example by publicly shaming a poorly performing worker, then the exercise of authority is less likely to be "reasonable" and comes closer to bullying and harassment.
Are workers protected from bullying and harassment?
Yes. British Columbia workers are protected from bullying and harassment in the following ways.
- The BC Workers Compensation Act prohibits bullying and harassment, and protects workers who report bullying and harassment.
- The BC Human Rights Code prohibits adverse treatment based on a protected characteristic, which includes harassment.
- The common law (the law made by judges when people sue one another) contains principles governing the legal effect of toxic workplaces.
There are similar protections for federally regulated workers. Federal industries include banking, aerospace, and interprovincial logistics, among others. This article focuses on the regulations applicable to non-federal workers.
1. Workers Compensation Act protection (WorkSafeBC)
The BC Workers Compensation Act governs workplace safety in British Columbia. Bullying and harassment is considered a workplace safety issue. Therefore, employers are responsible to ensure bullying and harassment is not happening in their workplace. This generally involves:
- Having anti-bullying and anti-harassment policies
- Training workers about bullying and harassment policies, prevention, reporting, and consequences
- Investigating workers’ reports of bullying and harassment, and addressing and preventing bullying and harassment that does occur
- Not retaliating against workers who report bullying and harassment (more on this below)
Workers also have obligations under the Workers Compensation Act. These include:
- Not bullying and harassing others, obviously
- If they witness or experience bullying and harassment, reporting this to a supervisor or manager
- Participating in the employer’s investigation process
The relevant portion of the Workers Compensation Act can be viewed here.
When a worker reports bullying and harassment, they are protected from retaliation by the employer. This means that if the employer were to discipline, hyper-manage, dismiss, or take other adverse steps against the worker because they reported, the employee may be entitled to various remedies under the "prohibited action" provisions of the Workers Compensation Act. Remedies for prohibited action include reinstatement, lost wages, and pay in lieu of reinstatement.
The section of the Workers Compensation Act that deals with prohibited actions can be found here. WorkSafeBC issues written decisions concerning prohibited action complaints, and these decisions illustrate the way the Act is applied in real-life situations.
Protection under the Workers Compensation Act is not limited to employees. It covers many types of worker, including independent contractors, for whose safety the employer is responsible.
2. Human Rights Code protection
The BC Human Rights Code protects certain characteristics of employees, and non-employee workers, in British Columbia. Protected characteristics include race, sex, sexual orientation, disability, religion, and many other characteristics. As such, when a worker is targeted by their employer or coworkers because of a protected characteristic (for example being gay, being Asian, having a disability, being a woman), they may have recourse to protection under the Human Rights Code.
The Human Rights Code contains a blanket prohibition on employers treating a worker adversely based on their protected characteristics. This includes harassing behaviour, as well as many other types of adverse behaviour. The relevant section of the Human Rights Code can be found here. Like WorkSafeBC, the Human Rights Tribunal issues written decisions concerning discrimination complaints, and these decisions illustrate the way the Code is applied in real-life situations.
Where an employee suffers detrimental treatment, the BC Human Rights Tribunal may award damages for the losses suffered, such as lost wages in the case of reduced pay or dismissal. Where discrimination is proven, the Human Rights Tribunal will also award compensation for injury to dignity. This typically amounts to between $5,000 and $25,000, based on the circumstances.
3. Common law protection
The common law, as it applies to employment, does not specifically prohibit bullying and harassment. However, to the extent that bullying and harassment can make the workplace toxic, they may result in constructive dismissal. This would especially be the case where the bullying and harassment came from the targeted employee’s manager or other authority figure. Damages for constructive dismissal are dependent on the employment contract, and range from statutory notice to reasonable notice. Where the employee is bullied or harassed in the course of being dismissed, it can also give rise to aggravated damages. An example of workplace bullying that resulted in a finding of constructive dismissal can be found here. An example of an employee who was grossly mistreated in the course of being dismissed can be found here.
Both workers and employers need to tread carefully when workplace bullying and harassment is at issue. If you are being targeted with bullying or harassment, or if you have received a complaint of bullying or harassment from a worker, we encourage you to seek guidance from one of our experienced employment lawyers.
