Psychological harassment in the workplace is widespread and can have devastating consequences. Fortunately, the law provides protections against such harassment, as well as recourses for victims.
Who is protected against psychological harassment under the Act respecting labour standards?
The protection against psychological harassment under the Act respecting labour standards (ALS) does not apply to all workers.
The following workers cannot file a complaint for psychological harassment under the ALS :
- self-employed workers (people who operate their own businesses)
- people who work in companies covered by federal laws. They include employees of the federal government, banks (but not credit unions), radio and television stations, interprovincial transport companies, ports and telecommunications companies. Labour standards for these workers are in the Canada Labour Code, which is a federal law.
You can visit the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST or Quebec labour standards and workplace health and safety board) for more complete list.
Other workers in Quebec, including senior managers and unionized employees, benefit from the protection against psychological harassment in the ALS.
What is psychological harassment?
In everyday language, to “harass” someone means to constantly attack someone. So you might assume that if these attacks affect the person psychologically, it’s “psychological harassment”.
But it is more complex than that. The concept of psychological harassment is defined in the ALS. For the conduct to be considered psychological harassment, all the criteria in the ALS must be met.
For there to be psychological harassment, the behaviour must:
- be “vexatious” (bothersome) and repeated, or serious
- be hostile or unwanted by the employee
- affect the dignity or physical or psychological integrity of the employee
- create a harmful work environment
Vexatious behaviour that is repeated or serious
To be considered vexatious, the behaviour must be abusive, humiliating or offensive for the person experiencing it.
This is measured objectively, which means that a reasonable person in the same situation would also find the behaviour bothersome.
For example, Isaac is gay. Two of his colleagues try to humiliate him daily. They refer to Isaac as a female, tell him to use the women’s washroom and regularly make other offensive remarks. Even though the colleagues claim that they’re “just kidding around”, Isaac finds this behaviour to be vexatious. He feels his sexual orientation is a private matter.
A word of caution! Behaviour can be vexatious even if the person doing it doesn’t mean it to cause harm. Take the example of Luc, who really likes his colleague Kim. For a while now, he has been regularly making comments on her red hair, playing innocent tricks on her, asking for a “password” when she tries to go by and sending her jokes via email to tease her. Kim never laughs and has twice asked him to stop, but Luc thinks she is just shy and that she will eventually “warm up” to him. Recently, Kim’s colleagues have noticed that she avoids Luc, and looks worried when she sees him. This could be a vexatious conduct, even if Luc does not have bad intentions.
Repeated Behaviour or a Single Serious Incident
The behaviour or things said must occur repeatedly. It’s not necessarily harassment just because a colleague is in a bad mood one day and says something mean.
However, it can also be a single serious gesture. For example, an employer who touches his employee’s breast without her consent during a Christmas party is committing sexual harassment (which is a kind of psychological harassment).
Hostile or Unwanted Conduct
The behaviour or things said must be hostile, meaning aggressive, threatening or harmful, or being done by someone behaving like an enemy.
The behaviour or things said must be unwanted. A gesture can be unwanted even if the employee does not protest out loud.
Conduct Harming the Dignity or the Psychological or Physical Integrity of the Employee
For example, the employee feels belittled, devalued or denigrated. This employee may suffer permanent psychological or physical harm.
The Result: a Harmful Work Environment
There is deterioration in the employee’s work environment. For example, the workplace atmosphere is such that the employee can no longer do their job properly.
Who may be involved in psychological harassment?
People with a variety of work relationships could be involved in situations of psychological harassment. For example:
- work colleagues
- employers – employees
- clients – employees
- suppliers – employees
How does the Act respecting labour standards protect employees?
The Act respecting labour standards protects employees against psychological harassment in the following ways:
- It gives employees the right to a workplace where there is no psychological harassment.
- It obliges employers to prevent psychological harassment and resolve situations of psychological harassment brought to their attention.
The employer must take steps to prevent psychological harassment. For example, the employer must put into place a policy to prevent psychological harassment and an internal procedure for handling complaints of psychological harassment. The employer can also name a resource person responsible for dealing with these problems.
Resolving problem situations
The employer must do more than take preventive measures. She must also help resolve problems brought to her attention. For example, she can listen to her employees, put a stop to unacceptable behaviour or impose penalties for inappropriate behaviour.
The employer doesn’t have to guarantee the complete absence of psychological harassment in her workplace, but she must take steps to prevent harassment and resolve problem situations.
Are employers responsible for psychological harassment in the workplace?
If an employee files a complaint under the Act respecting labour standards, it’s the employer, and only the employer, who can be sued and possibly be held responsible for psychological harassment at work. This is true even if it is not the employer who is harassing the employee.
For example, Sam is being harassed at work by his colleague, Henri. If Sam makes a complaint, his boss, Elaine, might be investigated and sued.
Why? Because it is the employer who must take steps to prevent or resolve a situation of psychological harassment.
Under other laws, however, an employee might be able to directly pursue the person who committed the harassment. For example, the employee could sue for damage to reputation or file a complaint with the police.
During my last evaluation, my employer told me I needed to improve my performance at work. I don’t agree with him. Is this psychological harassment?
No. Your employer has the right to tell you what he expects from you and to evaluate your performance at work.
It is important not to confuse stressful situations in the workplace with psychological harassment.
The following are not psychological harassment:
- The employer’s right to manage her staff. For example, Elizabeth’s employer calls her into her office to say that there are errors in Elizabeth’s sales report and that she must improve her work performance.
- A work conflict. For example, Arthur does not like working with Sally because they have disagreed on how to do their jobs ever since they first had to work together.
- A normal behaviour that is misinterpreted by a sensitive person. For example, Martha works in a factory. Her colleagues whistle while working. Martha can’t stand this whistling.
A word of caution! If the employer uses her managerial powers improperly, this could be psychological harassment. For example, Elizabeth’s employer often yells at her in front of everyone, shouting that Elizabeth is “stupid” because she does not do her job properly.
What can I do if I believe I have been a victim of psychological harassment?
If you believe you have been a victim of psychological harassment, you can:
- try to resolve the problem on your own
- follow the complaint procedure in your workplace’s policy to prevent psychological harassment
- consult the resource people in your company
- consult your union representative
- talk to your employer
- get legal advice from a legal professional
- file a complaint for psychological harassment
Filing a Complaint for Psychological Harassment
Unionized employees – check what your collective agreement says (e.g., file a grievance).
Non-unionized government employees – contact the Commission de la fonction publique.
Other employees and managers – contact the CNESST within 2 years of the last incident of harassment.
What happens after a complaint is filed with the CNESST?
The CNESST decides whether it can accept to study the complaint. In legal terms, this is called the “admissibility” of the complaint.
The complaint is admissible if all these conditions are met:
- The person complaining is protected by the Act respecting Labour Standards.
- The complaint has been filed in the right place (unionized and government employees follow a different route).
- The last incident of psychological harassment happened within the last 2 years.
- The complaint is about psychological harassment.
If the complaint is admissible, the CNESST offers its mediation services to the employee and the employer. In mediation, an impartial person helps them find a solution to settle the situation. The employee or the employer can refuse to go to mediation.
If the employee or employer refuses to go to mediation or if they are unable to agree once they are in mediation, an inquiry is held. An investigator appointed by the CNESST analyses the complaint: he listens to everyone’s version of events and informs the employer and the employee of their rights and obligations. The investigator might also come into the workplace to make his own observations or to talk to witnesses.
What happens at the end of the inquiry?
The investigator makes a recommendation to the CNESST on whether to take the case on behalf of the employee to the Tribunal administratif du travail (TAT). The TAT is a kind of court that decides whether the employee was the victim of psychological harassment.
If the investigator recommends to the CNESST that it should act for the employee, the case will be processed by the TAT. The employee will get the services of a lawyer from the CNESST free of charge.
But if the investigator recommends that the CNESST should simply close the file, the employee will not have the support of the CNESST. However, he can decide to bring his complaint to the TAT on his own.
Note: An employee can request a review of an administrative decision that goes against him, for example, a decision that the complaint is not admissible or a decision by the CNESST not to represent him. To learn more about the review process and the deadlines, contact the CNESST.
What happens before the Tribunal administratif du travail?
If the employee and employer agree, a conciliator named by the TAT tries to settle the case to the satisfaction of the people involved. This is called “conciliation”. Unlike the mediation offered by the CNESST, the employer and the employee are allowed to be accompanied by lawyers – if they wish – during the conciliation process.
If the file is not settled in conciliation, the TAT holds a hearing to decide whether there was psychological harassment and whether the employer respected her obligations.
If the TAT decides that the employer did not take steps to prevent or resolve a situation of psychological harassment, here are some of the things it can order the employer to do:
- give the employee his job back
- pay money to the employee to compensate him or to cover medical treatment the employee needed because of the harassment
- as a punishment, pay money to the employee
- change the disciplinary record of the employee
- take steps to stop the harassment
I am not protected by the Act respecting labour standards. Can I still do something about psychological harassment?
It depends on your situation.
Other laws may protect you against psychological harassment. For example, the Canada Labour Code protects people who work in businesses covered by federal laws against sexual harassment (which is a form of psychological harassment).
There are also laws that protect against discriminatory harassment, which is harassment of a person because of race, sex, colour, religion, etc. For this type of harassment, self-employed workers can complain to the Commission des droits de la personne et des droits de la jeunesse. Workers in businesses covered by federal laws can complain to the Canadian Human Rights Commission. If the harassment destroys your reputation, you may be able to sue the person harassing you for damage to your reputation.
If it’s a crime, you can file a complaint with the police.
You can consult a legal professional to find out your options.