July 6, 2007
Employers are required to create and maintain a safe workplace where employees are treated fairly with civility, decency and respect. Do you have the right policies in place? Courts are awarding significant damage awards to employees who have been bullied and harassed in the workplace. Employers must take effective steps to address unacceptable behaviour or face exposure to significant legal liability.
What is workplace bullying?
Bullying and Harassment in the workplace encompasses a wide range of behaviour including: verbal abuse, physical abuse and behaviour that is humiliating, intimidates or demeans other employees. It is estimated that 25-30% of employees in the United States experience harassment at work ¹ . In Ontario, education workers appear to be especially vulnerable as 30% of education workers reported being targets of verbal abuse, physical threats and other forms of intimidation ² .
The Economic Cost of Bullying
Research from the United Kingdom also concluded that bullying resulted in 40 million working days lost each year. This is nearly 160 times the number of days lost through strikes.
Employers have a broad responsibility to ensure that the work environment does not become so hostile as to make competent work performance impossible or continued employment intolerable. Employers are responsible for the actions of their managers, supervisors and employees. Employees who have been bullied or harassed may bring a claim of constructive dismissal or an action for the intentional or negligent infliction of mental suffering.
Where an employer makes a substantial or fundamental change to an employee’s contract of employment, such that the employer has violated the terms of the contract, the employee may consider him or herself dismissed and therefore entitled to damages in lieu of notice.
This means that where the work environment has been poisoned by bullying and harassment, to the point where continued employment is intolerable, the employee is entitled to treat the employment contract as at an end and recover damages. Although the employer did not create a poisoned atmosphere the employer is held responsible for allowing it to continue.
In Stamos v. Annuity Research, the plaintiff employee resigned as a result of harassment at the hands of a co-worker. The harassing conduct included: intimidation, making unreasonable demands, use of sexist language and generally hostile behaviour. The employee was awarded six months pay in lieu of notice as well as a $3000 exit bonus and $2,500 for mental distress.
The court noted that the employer had knowledge of the perpetrator/bully’s conduct and had even intervened on several occasions. However, the employer treated both employees equally where one employee was clearly the perpetrator of the harassment. The court held that for the employer to treat the perpetrator and victim identically was “unjust and unconscionable”.
Also, the employer has a duty to proactively take charge of the quality of the work environment and workplace interactions. This includes responding to complaints of abusive conduct and uncivil actions by coworkers, supervisors and managers. Effective intervention would have included discipline for the perpetrator and appropriate steps to eliminate the unacceptable conduct, as well as support for the victim.
Intentional Infliction of Mental Suffering
Employers need to provide constructive criticism in a manner that maintains an employees dignity. When dealing with a disabled employee, an employer must balance their need for information on a disabled employees diagnosis and prognosis, with respect for the employee’s privacy. Being overzealous to the point where communication has an adverse effect on the employee’s health may expose the employer to liability for mental distress.
The tort of intentional infliction of mental suffering has three elements including:
a) flagrant or outrageous conduct;
b) calculated to produce harm; and
c) resulting in a visible and provable illness
In Prinzo v. Baycrest, the Ontario Court of Appeal awarded an employee $15,000 for the harassment suffered at the hands of her employer. In this instance, the employee had been injured on the defendant’s premises. A supervisor at Baycrest called the employee and falsely claimed that they had been in contact with the employee’s physician and the physician had stated the employee was healthy enough to return to work. The employer constantly called the employee demanding that she return to work. Even after a lawyer sent a letter to the employer informing them of the adverse effect their communication was having on the employee’s health and requesting that future communication be directed through the lawyer, the communications persisted. The plaintiff employee was eventually dismissed and recovered damages for wrongful dismissal and the intentional infliction of mental suffering.
Negligent infliction of mental suffering
An employer may be held liable even where the harm caused to an employee is accidental. For example, in Sulz v. Canada, an RCMP officer was awarded $950,000 in damages against the RCMP for the negligent infliction of mental suffering. Ms. Sulz’s supervisor was verbally abusive, made derogatory comments about her abilities and suitability for her job and blocked her transfer to another unit. In addition comments were made to Ms. Sulz directly, and about Ms. Sulz to her colleagues. Ms. Sulz was completely ostracized by her coworkers and eventually diagnosed with major depressive disorder. Ms. Sulz sued the federal government and the government of British Columbia alleging harassment, breach of contract for failing to provide a harassment-free environment, intentional infliction of mental suffering and negligent infliction of mental suffering.
The Court held that the supervisor’s conduct went far beyond constructive criticism and also violated RCMP harassment policy. However, there was no intention on the part of the supervisor to harm Ms. Sulz. The court awarded Ms. Sulz general damages in the amount of $125,000 because of the severe impact of her depression on her ability to work and enjoy life. The court also awarded $225,000 for the wages lost from the time of her medical discharge until the time of the trial and $600,000 for loss of future income.
An Employer’s Duties
Employer’s must ensure that employees are treated fairly with civility, decency and respect. It is important not only to have a Harassment Policy but also to train employees on the policy and monitor compliance. A comprehensive policy without compliance offers little protection to employees or employers.
Take Proactive Steps
- Develop a workplace policy that addresses Harassment
- Educate management, supervisors and employees on the policy
- Actively monitor compliance with the policy