Northern Exposure

Workplace Harassment: Preventive Measures May Limit Liability

By Dominique Launay

No doubt, workplace harassment remains a hot topic in Canada. Another Canadian province, Manitoba, has recently announced that it will join Ontario, Quebec, Saskatchewan, and the federal sector in requiring employers to provide protection from workplace harassment.

Quebec employers have been required to deal with protections from psychological harassment since 2004. Their experience has helped determine when behavior crosses the line from a work conflict to harassment. A recent Quebec case, Gougeon v. Cheminées Sécurité International ltée, illustrates this fine line and demonstrates the importance of preventive measures and a prompt response to a complaint.

Facts
Dany Gougeon, a production supervisor, supervised approximately 50 unionized employees working the evening shift. Six months after he started work, the union filed a collective grievance accusing Gougeon of extensively monitoring the employees and denigrating them in front of coworkers. Several employees with between 10 and 30 years of service — and no disciplinary record — were among the grievors.

Ultimately, the employer fired the supervisor, concluding that he wasn’t able to fulfill the job requirements. After the termination, Gougeon became depressed and was hospitalized for a week. Shortly after, he filed a complaint alleging psychological harassment by the employees he supervised and members of senior management.

Psychological harassment allegations
In addition to teasing and insults, the supervisor alleged that the following amounted to psychological harassment:

  • an employee suddenly grabbing his arm and firmly stating that “when he was talking to him, he needed to look at him”;
  • an employee falsely accusing him of being a racist and inviting him to fight after Gougeon told the employee to stop talking on the phone;
  • another employee kneeling before him and other employees saying that “what he wanted was for employees to kneel before him!” and
  • another employee throwing a chair in Gougeon’s direction, after the employee aggressively said that Gougeon didn’t know what he wanted.

Decision
In Quebec, harassment is defined 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 test is that of a reasonable person: Would a reasonable person placed in similar circumstances find that the behavior in dispute is vexatious?

In this case, Quebec’s Labour Standards Commission explained that the protection from psychological harassment in no way deprived the employer from exercising its management rights. Management was entitled to fire Gougeon so long as the dismissal wasn’t exercised in an abusive, unreasonable, or discriminatory way. On this point, the Commission didn’t find the employer to have abused its right to dismiss Gougeon.

The Commission, however, went on to decide that Gougeon was the victim of psychological harassment by the employees he supervised. The employees’ behaviors caused the supervisor to feel humiliated and isolated in a harmful work environment, which amounted to psychological harassment.

Although the employees had violated Gougeon’s rights, the employer didn’t. The Commission explained an employer’s duty as twofold: (1) prevent psychological harassment and (2) stop it when allegations are brought to its attention. In this case, the employer fulfilled its obligations since it had:

  • adopted a policy to deal with workplace harassment;
  • provided training to employees;
  • posted the policy in visible locations; and
  • acted diligently and intervened to bring the misconduct to an end each time that it was brought to its attention. Employees were appropriately disciplined for each of the reported incidents.

Lessons for employers
As seen in this case, employers are well advised to implement policies in respect of workplace harassment and take any harassment complaints seriously. In this case, the employer was able to avoid any liability, notwithstanding that the employees were found guilty of psychological harassment. Although this case comes to us from Quebec, the same principles apply to harassment generally in the other provinces.