The following article originally appeared in the December 2013 issue of UBC AAPS' newsletter. Edited and reprinted with permission.
By
Luisa Liberatore, CHRP, UBC AAPS
On November 1, 2013, WorkSafeBC Harassment
and Bullying Policies
came into effect. The new policies and resources provide guidelines for the
prevention and handling of workplace harassment complaints and to support
recent changes to the Workers’ Compensation Act (WCA), which sets out the
general duties of employers, workers, and supervisors.
As a result of these changes, a worker can now submit a claim
to WorkSafeBC claiming a mental disorder
that resulted
from harassment and bullying in the workforce.
The following three criteria
must be satisfied for a claim that alleges a mental disorder as a result of
harassment and bulling in the workplace:
The
mental disorder
- either
(a) is
a reaction to one or more traumatic events arising out of and in the course of
the worker's employment, or
(b) is
predominantly caused by a significant work-related stressor, including bullying
or harassment, or a cumulative series of significant work-related stressors,
arising out of and in the course of the worker's employment, - is
diagnosed by a psychiatrist or psychologist as a mental or physical condition
that is described in the most recent American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders at the time of the diagnosis, and - is
not caused by a decision of the worker's employer relating to the worker's
employment, including a decision to change the work to be performed or the
working conditions, to discipline the worker or to terminate the worker's
employment.
The new policies enforce the
shared responsibility of the employer, supervisor, and worker (Sections 115 to
117 of WCA) for a safe and positive work environment.
However, just because an
employee elects not to file a formal or written complaint, it does not absolve
management of its duty to inquire into and objectively review workplace
incidents and dynamics that could constitute harassment.
For example, if an employee
brings her concerns forward to her manager but asks that nothing formal be done
due to fear of retaliation, the manager cannot ignore the issue. Rather the
manager has a duty to conduct a fair and comprehensive investigation.
Failure to conduct a proper
investigation with objective findings can impact the employer negatively in a
worker’s claim. As a result, the employer may be faced with higher operational
costs and the possibility of paying fines.
What is Bullying and Harassment?
To better understand the
legislation, it is important to understand what workplace bullying and
harassment is. Essentially it includes inappropriate conduct or comment(s) that
the person knew or reasonably ought to have known would cause that worker to be
humiliated or intimidated.
This behaviour can come from
co-workers, supervisors, employers, and external forces (e.g. students,
clients, contractors, and other third party service providers). Examples
can include:
- Verbal
aggression or name-calling - Vandalizing
personal belongings - Sabotaging work
- Spreading
malicious rumours - Humiliating
initiation practices / hazing - Personal attacks
- Aggressive /
threatening gestures - Cyber-bullying
This is not a complete list. Other more subtle behaviours, such as patterns of targeted
social isolation, might also be considered bullying and harassment if they’re
humiliating or intimidating, and fit the definition of bullying and harassment set
out in the Occupational Health and Safety policies.
What
isn’t Bully and Harassment?
What’s not deemed to be
harassment and bullying is what reasonably falls within the domain of
management’s right to direct and manage the workplace. Some employment issues such as
- workloads,
- reassignments,
- performance
management or - discipline,
may result in unpleasant
workplace interactions but, provided they were conducted in an appropriate,
fair, and reasonable manner, they would be excluded from the definition of
harassment and bullying.
Who Do I Call?
No member
should have to deal with complex potential harassment and bullying alone. Contact Anne Mason, APSA’s Association
Director for confidential counsel and support.