Description

This week, workplace bullying and harassment understandably have our hosts All Worked Up. Jill and Dana talk about employee rights, power imbalances, inappropriate jokes, and mobbing. They explain the difference between harassment and bullying, and what employees can do if they are experiencing either in the workplace.

Full Episode transcript:

Narrator: This podcast is produced by Nelligan Law.

Dana DuPerron: Welcome to All Worked Up, the podcast where two employment lawyers break down real-life workplace issues that affect real people. I’m Dana DuPerron.

Jill Lewis: I’m Jill Lewis and we’re Senior Associates at Nelligan Law, and we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers. Welcome to All Worked Up, I’m Jill.

Dana DuPerron: And I’m Dana.

Jill Lewis: And what’s got us worked up this week, Dana?

Dana DuPerron: Yeah, you know what’s got us all worked up?

Jill Lewis: What are we worked up? Harassment.

Dana DuPerron: Oh, harassment?

Jill Lewis: Yeah, isn’t harassment –

Dana DuPerron: Harassment!

Jill Lewis: Yeah.

Dana DuPerron: It does have us worked up! It should have us worked up.

Jill Lewis: Yeah, absolutely worked up. Bullying and harassment.

Dana DuPerron: Bullying, harassment, –

Jill Lewis: This is what we’re talking about today.

Dana DuPerron: Toxic workplace, yes. Yeah, this is a big issue. We see this almost as much as just the wrongful dismissals coming through the door, you know what I mean? Just people coming in, they can’t work anymore, sometimes they’re going on sick leave because they believe, they feel that they’ve been harassed.

Jill Lewis: Yeah, yeah.

Dana DuPerron: Yeah, so let’s break this down.

Jill Lewis: So let’s break it down, yeah. OK, so Ontario.

Dana DuPerron: That’s where we live.

Jill Lewis: That’s where we live.

Dana DuPerron: So that’s we live.

Jill Lewis: So that’s where we’re all usually looking at the Ontario Legislation, right? There is – it’s governed by the Occupational Health and Safety Act, which requires that employers provide employees with a safe workplace, which includes a harassment-free workplace.

Dana DuPerron: Yes.

Jill Lewis: And harassment is defined in the Occupational Health and Safety Act, which is generally a conduct or a course of conduct –

Dana DuPerron: Course of conduct, yeah.

Jill Lewis: That is known or reasonably be known to not be welcome. Yeah, there’s workplace harassment; there’s sexual harassment was also added so that’s similar. It’s either conduct or course of vexatious conduct, or solicit – yeah, sexual solicitation. I wanted to make sure I had that right: sexual solicitation.

Dana DuPerron: I mean these are tricky because they’re like the exact wording of the legislation.

Jill Lewis: I know.

Dana DuPerron: Something that you go back and check every time.

Jill Lewis: Basically like –

Dana DuPerron: But it’s kind of sexual harassment, like harassment, and then when it’s got a sexual nature to it, yeah, sexual harassment.

Jill Lewis: Yeah, yeah.

Dana DuPerron: Right? That’s pretty much the same, but yeah. The added piece, sorry, that I was stumbling over was the sexual solicitation part from somebody who is in a position who can grant or deny you a benefit.

Jill Lewis: Right.

Dana DuPerron: So a co-worker hitting on you could be sexual harassment, your manager that brings it up to that level.

Jill Lewis: It’s a bigger issue.

Dana DuPerron: It’s a bigger issue, yeah, yeah. And the Occupational Health and Safety Act also defines workplace violence. And that one’s a little bit more clear. It’s like physical violence in the workplace. So yeah, so we actually have that one defined for workplace harassment. The procedure for going forward with making a complaint, the problem with the Occupational Health and Safety Act is sometimes – say there’s no teeth to the Act, the employer has to investigate any sort of complaints of harassment and the investigation – there is a procedure in place under the Act. It has to be through an impartial – I think the language is in there. It does have to be someone who can make a fair determination, right?

Jill Lewis: Yes, yeah.

Dana DuPerron: But so if you’re an individual, you feel like you’re being harassed, you have been either subjected to something really bad or a course of conduct, then you should check the policies. Check the workplace policies because that sets out what you should do. And that’s what we always tell people as the first place to go, right? Do you have a policy? What does it say you should do? Who should you report it to?

Jill Lewis: Right.

Dana DuPerron: The policy should say – we talked about this last time with a discrimination issue – but it should say, “If the person who you’re supposed to report it to is the alleged harasser, then who do you go to?” It should all be set out in there, and then it usually sets out the steps in terms of what’s next. You know, sometimes the employer, if the complainant wants to look at a less, like a more informal process, like a mediation or something – and that might work in certain situations – you have to be mindful of power imbalances in mediations generally at times. There are times when mediation might not really, really work well. And then otherwise there does have to be this investigation that reaches a conclusion on whether or not harassment occurred.

Jill Lewis: Yeah, and we’re going to get into workplace investigations. We’re seeing them more and more. Like we were saying, the Act requires an employer to do an investigation, whether that’s internally or externally. We’re going to get into all of that and what that looks like, what that process looks like. But that is there. There has to be some sort of response to the complaint. Sometimes it’s not a full investigation; sometimes it’s just like speaking to either individual. And maybe this can get resolved through a mediation. I mean I wish that they could be resolved. It feels like they get to the point though. By the time the complaint’s coming out that it’s gone too far. I don’t know. Have you seen that, like where –

Dana DuPerron: I have. By the time a formal complaint is made where it is, –

Jill Lewis: Exactly.

Dana DuPerron: If it is something – that’s often the first step in most employer policies. The first step is often, “Can you fix the issue with person themselves?”

Jill Lewis: Yes, yeah.

Dana DuPerron: Sometimes it’s so bad that you can’t. But sometimes maybe it’s like an offensive joke.

Jill Lewis: Yeah, yeah.

Dana DuPerron: You know, a couple of offensive jokes and you feel like, “Hey, could you not do that? This is offensive and this is why.” And maybe, hopefully, the person will say, “Oh my God, I didn’t even realize. I’m so sorry.”

Jill Lewis: Exactly.

Dana DuPerron: And the behaviour will stop, and then the issue is dealt with. That would be ideal because sometimes what we have is we get to this point where the relationship’s just too fractured.

Jill Lewis: It’s just broken.

Dana DuPerron: Yeah.

Jill Lewis: Yeah, because I mean sometimes the respondent’s – there may not be that intention behind it but that’s not required. I mean you still find harassment even though you didn’t intend to harass, you know. That’s a big piece, and we’re seeing that a lot more now, right? Where it was really built into the culture of, like, whether it’s an all-boys club or the jokes that were once appropriate in the workplace just aren’t appropriate anymore. I mean yeah, we’re coming from, we’re certainly coming from a place where certain attitudes were acceptable in the workplace and we’re just –

Dana DuPerron: Yeah, it’s not really Mad Men anymore, right?

Jill Lewis: Yeah, that’s it.

Dana DuPerron: Like there’s certain stuff that you just can’t –

Jill Lewis: Yeah, and it may be people don’t realize they’re doing it, that maybe there is no malicious intent. Unfortunately it does feel like by the time they’ve come to us it’s almost too late, but I think I would tell somebody, “If you feel like you’re being harassed, yeah, talk to somebody.”

Dana DuPerron: “Can you talk to the person? Can you, or is it so bad” –

Jill Lewis: “And try and talk to the person.”

Dana DuPerron: “That you can’t?”

Jill Lewis: “Have you tried?” A lot of the time when people come to see us, they have tried. Like it’s hard to come right out and say to someone, “You’re a harasser,” but to have that initial conversation is sometimes doable.

Dana DuPerron: Maybe it’s not – I mean we don’t say harassment. You can say, “That makes me uncomfortable.”

Jill Lewis: You’re right, yeah. “You know, I don’t like that.”

Dana DuPerron: I am not – like, “I don’t appreciate that” or “That right there crossed the line a little bit,” yeah. So OK, so that’s done. In terms of – not parking that but just because this is harassment and bullying – bullying is not its own defined term in the Occupational Health and Safety Act.

Jill Lewis: Not in Ontario.

Dana DuPerron: It’s more like a subset of harassment, right, where that bullying behaviour, like that could be that course of vexatious conduct that amounts to harassment.

Jill Lewis: Right, right. There’s different types of bullying. I mean we’ve got obviously one on one, but a lot of times we see – I’m blanking – group bullying. I’m totally –

Dana DuPerron: Oh, like mobbing?

Jill Lewis: Mobbing! Mobbing, yeah. Yeah, and that one’s never – I don’t know. People say mobbing and you just have this idea in your head that it’s a bunch of people that are stomping outside your office or something or, “Hey loser, you can’t come and sit with us at the lunch table.” And it’s often those subtle – sort of the same thing we talked about with the discrimination. It can be very subtle. Yeah, certain individuals meet after work for drinks and don’t invite –

Dana DuPerron: And you’re excluded.

Jill Lewis: Yeah, and exclude you. People snicker at your comments during work meetings or roll their eyes. Or there’s a lot of closed-door meetings that people have that you’re not invited to. That’s the type of – yeah, or I guess what we’re seeing more of is online stuff so people messaging each other and having certain work chats, right? And maybe you’re being brought up in something like that? Which I’ve got to remind people that, especially if you’re using those workplace teams.

Dana DuPerron: Yeah, any of those.

Jill Lewis: That is employer!

Dana DuPerron: Yeah, anything there the employer can access.

Jill Lewis: Yeah, they could access. Not that I’m saying, “Oof, so you’re going to do some bullying, make sure it’s on your own time, on your own phone.”

Jill Lewis: Yeah.

Dana DuPerron: But that was just a side bar. Yeah, so that’s sort of like the group, the mobbing that sometimes we do see.

Jill Lewis: Yeah, yeah.

Dana DuPerron: If someone thinks that they’re being harassed, being bullied, being subjected to group mobbing or whatever. Again I would say check your employer’s policies and follow the steps in the policies if you can, you know? And you could speak to a lawyer too at the same time. Or if that doesn’t work, speak to a lawyer. And again, we touched on this in the last episode when we were talking about discrimination, but keep records of the instances of harassment instead of just, “I was harassed.” Those sweeping terms are hard for us to actually show. We need the examples.

Jill Lewis: So hard.

Dana DuPerron: So we don’t need the conclusion, we need the examples of the behaviour that has led you to conclude that you’re being harassed or bullied.

Jill Lewis: Exactly.

Dana DuPerron: Or mobbed, like those types of things. And concrete examples.

Jill Lewis: Yes, yes.

Dana DuPerron: Like if it’s on this day, “Everybody did this. No one told me they made an effort to not tell me,” or “They were critical of my work,” those kinds of examples are really key.

Jill Lewis: Yeah, yeah, exactly. And then, yeah, so make all those examples or make you sure you’ve got examples of those. There can also be – I want to talk really briefly about toxic workplace because this all can blend together and you can claim that your employer’s created a toxic workplace. Maybe they know of the bullying and they’re just allowing the behaviour.

Dana DuPerron: Yeah, maybe it’s management doing – there’s no one you can go above the person doing it.

Jill Lewis: Yeah, exactly.

Dana DuPerron: The other thing too is that you can be part of a toxic workplace and not be the one receiving the, –

Jill Lewis: The harassed or the victim, yeah.

Dana DuPerron: The harassed or the victim of harassment, right? So you can be in the office and your boss comes in and starts slamming doors and starts yelling at a co-worker. Maybe it’s a co-worker who is being bullied and you see it all the time, or sexually harassed. Like maybe you see a manager constantly making comments about one particular individual. Or I mean it doesn’t have to be an individual. But if you’re part of that workplace, you also can be a victim to harassment. And you can claim for toxic workplace. You can bring that complaint forward to your employer. Don’t feel that just because it’s not happening to you –

Jill Lewis: That you have to stay silent or can’t say anything, yeah.

Dana DuPerron: Right? Because you’re part of that workplace, and it sits with you. You go home every night or you feel uncomfortable. You’re walking on eggshells and – I don’t know, it is important that if you’re part of a workplace that feels toxic. And I have always told people, so many clients have said, “I sit in my car and I’m either sick to my stomach before I go into the office. I want to cry. I can’t get out of my car. I don’t know, I feel like Lester Flagg.” “Come see us, come see us, please, because we’ll talk to you about it.” And whether it’s even just a consultation to see if there is anything there, it’s usually you’ve got to trust your gut.

And if you physically feel like you can’t get out of the car and you can’t get into your workplace, now that we’re at home that’s an even harder one to flag. But yeah, if you’re having those sort of physical reactions to work, –

Jill Lewis: Yeah, and then – yeah, definitely speak to someone, yeah. And then what you do with it is, it could be a constructive dismissal as we were talking – we’ll talk about constructive dismissal in another episode and what exactly that means. But it’s basically like claiming your employment has been ended as a result of this and looking for a package. If you’re trying to claim that, it’s better if you’ve made the complaint for it, like gone through the process and seen that through.

Dana DuPerron: Yes.

Jill Lewis: You can get an investigation, and the investigation sometimes will make you feel validated, like heard and stuff, so there are different options. There’s no stand-alone claim in Ontario for harassment. You can’t sue someone, like sue your employer for being harassed.

Dana DuPerron: That’s what I meant by no teeth in that.

Jill Lewis: Yeah, but probably you can make a complaint to the Ministry of Labour. The Ministry of Labour can order an investigation. I think there’s penalties and stuff but there’s minor, minor –

Dana DuPerron: They’re just minor, but also it could be bad faith in the treatment, depends on what else. So it’s worth speaking to someone about what the potential options are –

Jill Lewis: Of course, yes.

Dana DuPerron: In terms of next steps. Again, for an employer, have a policy. Have a policy, and I say again because we talked about that with the discrimination stuff.

Jill Lewis: We talked about with discrimination. Yeah, I mean I can’t push that enough. Make sure that policy is being updated, and training. And –

Dana DuPerron: And that it’s being followed.

Jill Lewis: Yes!

Dana DuPerron: If someone comes to you and it’s like, “Oh” – if they even say something that kind of sounds like harassment, that triggers those obligations, even if they don’t use the word harassment, you can be like, “Well, just put that in the drawer and not worry about it.”

Jill Lewis: Yeah, yeah, yeah.

Dana DuPerron: You have an obligation to know what harassment is, what it could be, and if someone comes to you and it could be a harassment complaint, to deal with that appropriately.

Jill Lewis: Yeah, absolutely. And if you’re an employee and you’re going through harassment and you feel you’ve been bullied, talk to your doctor too, right? We always ask clients to go talk to your doctor because any of this stuff can cause anxiety, stress, sleeplessness.

Dana DuPerron: Those physical symptoms that you were talking about.

Jill Lewis: Those physical symptoms, you may want to either have it on a record that this is being caused by the workplace or you may want to even look into sick leave, disability leave –

Dana DuPerron: If you need it, yeah.

Jill Lewis: If you need it, if you need it.

Dana DuPerron: That’s what it’s there for, and it’s just we are often not the best at assessing ourselves.

Jill Lewis: Yes, exactly.

Dana DuPerron: And you need someone else to talk to.

Jill Lewis: And you don’t want to leave – this is the last thing I’m going to say to somebody who feels that they’re being harassed or feels that they’re part of a toxic workplace – it is tempting to leave. And yeah, if you have that opportunity to go somewhere else and find a new job, of course that’s what you should be doing. But just something to remember before you leave, is that you may not be able to access those disability benefits once you’re gone.

Dana DuPerron: If you actually need them. Yeah, if you are sick because of this, yeah.

Jill Lewis: Do you know what I mean?

Dana DuPerron: Yeah.

Jill Lewis: And sometimes it takes us a little bit to step out of that situation, right, because you’ve been in this bubble and you’re fearful, and then you quit. Maybe you just, on a whim, you quit. You walk away and in a week or two later you realize that it had a huge impact on your health.

Dana DuPerron: Yeah, you’re not good.

Jill Lewis: You know? And then it’s really hard. We can make that argument, like the illness occurred while you were still an employee so you should still be able to access disability leave, but maybe you can’t, so –

Dana DuPerron: It definitely makes it more challenging.

Jill Lewis: Oh, it’s so much more challenging.

Dana DuPerron: So if you’re appealing in that situation, talk to a lawyer. Talk to your doctor. And we’re not saying, maybe you just – like it’s just talk to someone.

Jill Lewis: Yeah, exactly.

Dana DuPerron: Talk to someone, don’t just assume it’s all OK and deal with it all yourself.

Jill Lewis: Yeah, yeah, absolutely. Alright.

Dana DuPerron: That’s what’s got us all worked up! Next week –

Jill Lewis: That’s All Worked Up!

Dana DuPerron: We’re getting into our Workplace Investigation series.

Jill Lewis: Yes, very excited about that.

Dana DuPerron: Alright, it’s got us All Worked Up. See you next week.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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