Workplace Bullying
How to Handle It
How to Handle It
By George King
The Lawyers Weekly Canada
May 16, 2008
Workplace bullying to the forefront of the public's consciousness. Politicians have sounded off on the disturbing trend of increased workplace violence.
Employers have generally reacted in one of two ways. The first group dismiss the talk as much ado about nothing, an issue already covered by their existing workplace harassment policies.
The employers in the second group scramble to discipline any managers who have been named in even spurious allegations of bullying, certain that they will find themselves on the hook for a six-figure judgment for either constructive dismissal or intentional infliction of mental shock unless they take immediate action.
As usual, the truth lies somewhere in between.
The employers in the first group certainly have a point -- workplace bullying is far from a new phenomenon. It may be less common than it was twenty years ago, when aggressive chastising and teasing was simply considered a forceful yet acceptable style of management. But a greatly increased awareness of the issue, due mainly to high-profile decisions such as that of Sulz v. British Columbia (Minister of Public Safety and Solicitor General), [2006] B.C.J. No. 3262, has made workplace bullying a hot topic.
That does not mean that the members of the first group are correct in dismissing the issue. Many have delayed addressing workplace bullying, confident that their anti-violence and anti-harassment policies sufficiently address the issue. This confidence, however, is frequently misplaced, an unfortunate result of overlooking the fact that much of the bullying that takes place in the workplace is not covered by either policy.
For example, bullying can be extremely damaging without progressing to a point where physical violence (or even the threat thereof) becomes a factor. And many anti-harassment policies are based on a definition of harassment and discrimination found within provincial human rights legislation, while a great deal of bullying is completely unrelated to the prohibited grounds they cite.
Nonetheless, the approach taken by the second group can be, in some ways, equally inappropriate. In Ontario, there is as of yet no explicit legislative requirement that an employer have a workplace bullying policy in place. Health and safety legislation does require an employer to take every reasonable precaution to protect its employees, and so it is certainly recommended that a workplace bullying policy be put in place.
But the lack of specific legislation makes it difficult to identify prohibited conduct, and leaves employers with a lack of direction in dealing with the problem.
Many employers are under a misconception as to what constitutes "workplace bullying". It is not restricted to harassment related to grounds prohibited by human rights legislation, but is instead much wider in scope. Moreover, bullying is a broad concept that does not depend upon the traditional understanding of the balance of power in a workplace.
For example, I have witnessed management employees essentially cowed into submission by their so-called subordinates, unable to bear another day of work due to their mistreatment and inability to cope.
Additionally, although workplace bullying should not be condoned under any circumstances, employers must be careful to distinguish between genuine and legitimate criticism and unacceptable anti-social behaviour. The line, unfortunately, is quite blurry.
Given the media attention accorded to workplace bullying and violence and the lack of legislation, there will be an increase in complaints, some of which will be unfounded. Increased litigation in this area is inevitable. Furthermore, the culture of a workplace can be as responsible for workplace bullying as any individual (although at the same time, the wrong individual can be poisonous in any environment).
In most situations, bullying in a workplace can be detected and controlled if the environment fosters openness and communication. Focusing on the workplace as a whole is frequently more productive than the dismissal of an individual employee ‹ like treating the disease itself rather than the symptoms.
Workplace bullying must be addressed. Its presence can have a detrimental effect on employers and employees alike. That being said, a measured response on the part of employers is preferable to an overreaction.
Lawyers can help by providing awareness training and counseling to their clients. No matter how much legislation is passed, there is always going to be unwanted and improper interaction between employees in the workplace.
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George King is the senior partner in the Employment and Labour Law Department of McTague LLP in Windsor.
Illustration by Bahar Nasirzadeh
