By Simon-Pierre Hebert and Rachel Ravary
McCarthy Tetrault
If you have employees in Quebec, then you are likely familiar with the prohibition against “psychological harassment” that was added to the Act Respecting Labour Standards in 2004.
Managers initially reacted to the new provisions with a lot of apprehension, fearing that a disgruntled employee could turn any kind of employee’s management’ into a psychological harassment complaint. And rightly so — because, until recently, there was no real guidance as to what exactly “psychological harassment” meant.
Now that the first wave of complaints has finally wound itself through the administrative process, we can draw some clear lines about what psychological harassment is, and what it is not, and finally give managers some comfort that they won’t be punished for simply exercising their managerial rights.
What does “psychological harassment” mean?
If you want the legal answer, psychological harassment is defined in the Act as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.” The Act also says that psychological harassment can be the result of a single serious incident, if it has a lasting harmful effect on the employee.
The experience so far
The statistics that have come out so far are encouraging: 97% of psychological harassment complaints are settled either at the investigation stage or through early mediation, and very few ever end up in a formal hearing.
That said, for those complaints that are heard employers must be prepared for a long haul. Experience has shown that employers have to devote significant time and resources to handling complaints, and they often require several days of hearing. It can also take a great deal of time and attention for a good work environment to be restored after a complaint has been filed.
Where is the line between management and harassment
As noted earlier, some employers have been concerned that the normal exercise of their management rights may lead to claims of psychological harassment. The decisions rendered to date have now made it clear that employers still have the right to manage their businesses and their employees – but they cannot do so arbitrarily or in a way that is abusive or harmful to the employee. The decisions have also made a clear distinction between legitimate performance management and psychological harassment.
While it is clear that the provisions on psychological harassment do not trump management rights, they do put some limits on them. Understanding these limits will help employers reduce the risk of complaints and improve their work environments.
Lessons for employers
Based on experience to date, here are some tips on how to prevent regular employee management from turning into psychological harassment complaints:
- When criticizing an employee’s performance, make sure to also provide the support necessary to correct the problems.
- Try as much as possible to treat all employees similarly when it comes to disciplinary measures for similar behaviour. Don’t single people out!
- Take the same approach when handling performance issues. Only require an employee to provide the same level of performance as you expect and accept from other employees.
- When commenting on performance, make sure your comments are both legitimate and respectful. Do not make comments in a disdainful way or in a way that humiliates the employee.
- Make your managers aware of what is and is not permissible, as they are the main targets of psychological harassment complaints. Taking the time to train managers properly is an investment that will reap many benefits in labour relations, productivity and other areas.
The Quebec law, in effect since June 2004, has its flaws, but its power derives from the fact that society in that province said that abusive conduct is not in our best interests. It’s a values declaration.
In the U.S., a bill with a more precise definition of “health-harming abusive conduct” but no governmental role in enforcement has been introduced, but not yet passed, in 13 states since 2003.
2009 may be the breakthrough year for the Healthy Workplace Bill with local affiliates of the Workplace Bullying Institute-Legislative Campaign as advocates.
HR groups and all business lobby groups oppose it reflexively without even considering that respectful management techniques are not impossible to achieve.
This article at least shows that the true power of legislation is to simply compel employers to look out after their own best interests, to do the right thing for the wrong reasons.
But if we in the U.S., the last of the western industrialized nations to have anti-bullying protections for workers, are to wait for employers to voluntarily do the right thing, too many will perish from preventable stress-related health problems!