What to do about Bullying at Work?

Legal issues related to workplace bullying and workplace harassment have become more common in recent years. This is likely in part due to an increased awareness of how bullying and harassment in the workplace can negatively impact the physical and mental health of victims. To combat the issue, workplaces across Canada have implemented company policies regarding harassment and bullying in the workplace, including processes and procedures to investigate and dispose of these issues.

What is Workplace Bullying and Harassment?

Workplace bullying and harassment can involve a wide array of behaviours but can generally be characterized as negative actions directed towards another person in the workplace. In many cases the victim is repeatedly targeted, which can create a toxic and hostile work environment that can significantly impact the victim’s physical and mental health. Common examples of workplace bullying and/or harassment include blaming a colleague for mistakes that were not theirs, constantly bringing up past mistakes a colleague made, intimidating, or undermining a colleague, taking credit for a colleague’s work, purposely setting a colleague up for failure, making rude or inappropriate comments, belittling a colleague, using abusive language, yelling, or unreasonable job demands or criticism.

Part II of the Canada Labour Code provides a definition of workplace harassment. It states that workplace harassment and violence mean “any action, conduct, or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including a prescribed action, conduct, or comment.” Based on this definition, workplace harassment and workplace bullying often involve many of the same behaviours and the terms are often used interchangeably.

Are Employers Required to Intervene?

The federal government of Canada has implemented laws requiring certain workplaces to implement workplace harassment and violence policies. Additionally, the provinces and territories are free to implement their own requirements regarding workplace harassment and violence policies. These provincial policies would apply only to workplaces that are not federally regulated.

Federal

As of January 1, 2021, all federally regulated industries and workplaces are required by law to have a workplace harassment and violence policy in place to protect employees. Policies typically include, among other things, a list of training the company will offer to employees to combat workplace bullying and harassment, a complaint and resolution process that clearly outlines the steps to be taken when an employee accuses another employee of bullying and/or harassment, the name of the individual or department that will handle complaints and carry out investigations, an outlined of how the company will protect the privacy of employees during an investigation, an outline of what recourse is available to an employee who has been bullied or harassed, an outline of the penalties for those found guilty of bullying or harassment, and an outline of any interim emergency procedures that can be put in place where there is an immediate threat of danger to an employee.

The Canada Labour Code provides for fines ranging from $10,000 to $250,000 for contravening a section of the Act. The quantum of the fine will be determined based on who committed the offence (corporation vs. individual) and whether the accused is a first-time offender.

Provincial

In addition to federally regulated industries and workplaces, each province and territory may also enact legislation addressing harassment and bullying in provincially regulated workplaces. In Ontario, the Occupational Health and Safety Act (OHSA) provides the framework for provincially regulated employers located in Ontario. Part III.0.1 of the Act discusses violence and harassment in the workplace specifically. The Act stipulates that workplaces that are subject to the Act must prepare policies to address workplace violence and harassment and must review those policies as necessary, with at least one review per year. The Act further provides that the policies must be in writing.

The Occupational Health and Safety Act provides that any person who contravenes a section of the Act is liable to a fine of up to $500,000 or to imprisonment for up to one year, or both. Where a corporation is convicted of an offence under the Act, they will face fines of up to $2,000,000. Of particular note, where a director or corporation fails to implement policies on workplace violence and harassment, they may face fines of up to $1,500,000.

Is it Illegal to Bully or Harass a Colleague?

As outlined above, most companies in Canada are required to have policies in place addressing workplace bullying and harassment. Those policies will determine potential penalties for employees who are found to have harassed or bullied another employee. In most cases, the company will choose to terminate the employment relationship with the offending employee.

In some cases, however, workplace bullying and/or harassment can rise to the level of criminal behaviour. While bullying on its own is not a crime, an individual who engages in harassing behaviour in the workplace may be charged with a criminal offence including criminal harassment. As outlined in the Criminal Code, an individual commits the offence of criminal harassment when they cause another person to fear for their safety as a result of repeatedly following the person from place to place, repeatedly communicating with the person or someone known to them, watching their home, workplace, or anywhere else they happen to be, or engaging in threatening conduct directed towards them or a member of their family. Where an individual engages in any of these behaviours in the workplace or in reference to a colleague, they may be charged with criminal harassment.

Furthermore, an employee who physically touches a colleague without consent may be charged with various criminal offences based on the nature of the physical contact. For example, an individual who touches a colleague in a sexual manner may face sexual assault charges. In cases of sexual assault, the intention of the accused is not important. Regardless of whether they intended to insult or harass the alleged victim, an individual nay be convicted of sexual assault if physical contact was made. An individual who makes any form of unwanted physical contact with a colleague faces assault charges. Those charged with a criminal offence for workplace bullying and/or harassment may face harsh penalties if convicted.