Ontario deliberates workplace bullying regulation

Canadian employment lawyer Howard Levitt, writing for the Vancouver Sun, examines the province of Ontario’s deliberations over amending its occupational safety and health laws to cover workplace bullying.  According to Levitt, the problem is the “grey area” between bullying and “an assertive management style.”  He continues:

Corporate rainmakers and top executives and salespeople often exhibit demanding and exacting traits that can be perceived as bullying. In a competitive environment, an assertive and “take charge” style is usually rewarded. If a manager exhorts and pushes subordinates to perform, those that can comply might be flush with success, while those people who are laconic by nature may view the exhortations as bullying.

I agree that such grey areas should not be the legal battlegrounds upon which bullying claims are fought, which is why I drafted the Healthy Workplace Bill to require that malice — defined for these purposes “as the desire to cause pain, injury, or distress to another” — must be proven to recover damages.  This language is contained in all standard versions of the Healthy Workplace Bill filed in the U.S.

However, Levitt’s suggestion that those who are “laconic by nature” are more likely to view an “assertive” and “take charge” management style as bullying is puzzling.  Many different personalities, not just those who may be more economical with their words, do not respond well to top-down, command and control management practices.  Such practices may not reach the level of bullying, but they well could be both obnoxious and ineffective.

Levitt’s article: http://www.vancouversun.com/life/Office+bullying+grey+area+employers/2536593/story.html

Hat tip: APA’s Psychologically Healthy Workplace Program

6 responses

  1. Let me help put Mr. Levitt’s comments and numbers in perspective.

    In Ontario, Mr. Vevitt needs an update. Changes are not be contemplated as Mr. Vevitt reports. Bill 168, the law addressing workplace bully was past and proclaimed in December 2009 and comes into force on June 1, 2010.

    Click to access b168ra.pdf

    As far as the Ontario law goes, it defines “workplace harassment” as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” It requires employers to “develop and maintain a program to implement the policy with respect to workplace harassment.”

    It would be worrisome if Mr. Vevitt, does not trust employer’s to develop policies that would brand the reasonable exercise of management rights as bullying. I’m not concerned that Ontario Employer’s will write policies to their disadvantage; my worry is that some will do the opposite.

    In Quebec, yes there have been thousands of complaints under the law prohibiting bullying in the workplace. 2,284 to be precise on average over the first three years of the prohibition, as reported by Quebec’s Commission des normes du travail. With a population of over 7 million in Quebec, this is hardly an abuse of process. Indeed the same report from Quebec reports that:
    • 95% of complaints alleged repetitive harassment
    • 97% of complaints were settled in the early stages of the process and were not referred to the Commission.
    It seems that Quebecers know what bullying is and are dealing with it responsibly.
    http://www.newswire.ca/en/releases/archive/June2007/04/c8475.html

    Finally a short comment on the need to prove malice, an element you cite in the Healthy Workplace Bill. What lies in the heart of a bully? I don’t think a victim cares.

    Robert Stambula
    Toronto, Ontario

    • So I am curious as a 20-year employee with a fortune 500 employer in Ontario, I have undergone bullying and psychological harassment by my supervisor for the last 18 months. I have complained to my HR dept. and nothing improves or gets addressed. I am currently off on stress leave. Do I have ANY rights??

      • Dear Sir, I am not a lawyer. I am being bullied and so came across a site you may find helpful in terms of a process to follow and it includes what to do if you get to the point where it is your health/you versus the company (U.S. Workplace Bullying Institute
        http://www.workplacebullying.org/
        ).

        One suggestion is, if you leave voluntarily, is still to apply for employment insurance and when denied it as you left voluntarily, you can appeal this as your leaving being “constructive dismissal.” This is not everything, but may give you the money that will allow you some time to get back on your feet.

        Also, if you have managed to stay past mid-June, as referred to by Robert above, Ontario now has legislation against bullying and you may have any easier legal solution than you would have before.

        I hope you are doing OK.

        Barb White, Ontario

  2. Robert, thank you for your consistently helpful updates on Canadian legal responses to workplace bullying. Those of us in America continue to hope that the Canadian example will start to rub off.

    On your question about requiring malice in order to recover: This may be a matter of cultural differences with regard to litigation. There are legitimate fears that opening the door too widely to bullying-related litigation will result in the proverbial avalanche of lawsuits. If we set the bar too low, this may well come to pass.

    But I’d also make a substantive response: To many, the perception of being targeted does make a huge difference in terms of how inappropriate or “bad” treatment is experienced. The definition of malice in the Healthy Workplace Bill fits most of those situations, so at the point of application, I don’t think we’re far apart.

    Again, thanks for your contributions. They are much appreciated.

    David

  3. The worry should not be on the “proverbial avalanche of lawsuits” but on the situation of victims who suffer from workplace abuse and the negative effect of that on society as a whole. It should be very concerning that in the legislation for Ontario Employer’s, it is the
    Employers who are empowered to write the policies, this does not prevent them from writting policies to the disadvantage of workers which limits their empowerment over such situations of abuse.

  4. bullying has been around for a long time; and this “new law” is not new, employers always had a responsibility, this new law only helps the employers to defend against a claim, it does nothing to help victims.

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