Personal harassment in the workplace is continuing to garner attention.
Although there is no federal law banning bullying, employers still risk legal liability if they don’t actively prohibit the behaviour. A number of factors point to this conclusion, including:
When Constructive Isn’t Positive
Several court rulings have upheld claims of constructive dismissal when an employee quit because of personal harassment by co-workers.
The theory behind the rulings is that bullying in the workplace represents an employer’s breach of the implied contractual obligation to provide employeeswith civility, respect and dignity. That breach, in turn, allows the employee to consider that he or she has effectively been dismissed.
In Shah v. Xerox Canada Ltd.,for example, the Ontario Court of Appeal rejected the argument that to prove constructive dismissal, an employee must prove the employer breached a specific fundamental term of the employment contract. A specific breach may be necessary in some cases, the court ruled, but not when a pattern of bullying has been established.
Unfair treatment and bullying also can overturn a justifiable cause for dismissal. In Paitich v. Clarke Institute of Psychiatry, the Ontario Court of Appeal upheld a constructive dismissal ruling in the case of an employee who had been fired for writing insubordinate memos to management. The trial judge ruled that bullying that occurred before the memos and management’s failure to address the problem was tantamount to constructive dismissal.
When certain conditions are met, courts have ruled that an employer’s conduct constitutes intentional infliction of mental distress or nervous shock. In Prinzo v. Baycrest Centre for Geriatric Care, the Ontario Court of Appeal upheld damages of $15,000 for nervous shock suffered by an employee.
And in Zorn-Smith v. Bank of Montreal, the trial judge awarded $15,000 in mental distress damages to a fired bank employee, ruling that the employer’s “callous disregard” set the preconditions for intentional infliction of mental suffering. Those preconditions were: flagrant or outrageous conduct calculated to produce harm that results in a visible and provable illness.
Canadian human rights legislation, of course, prohibits workplace harassment based on protected characteristics such as age, race, gender, sexual preference or disability. But bullying is different because it may not involve harassment on protected grounds.
Personal harassment also shouldn’t be confused with the differences of opinion or ordinary conflicts that arise in the workplace. Instead, bullying is behaviour that a reasonable person would consider humiliating, intimidating, undermining or threatening.
According to one study by the Workplace Bullying and Trauma Institute, one in six employees experience destructive bullying. The North American not-for-profit group also found that half of workplace bullies are women who target other women 84 per cent of the time. Male bullies target women 69 per cent of the time.
According to the Canada Safety Council, more than 80 per cent of bullies are managers or people in power and some of those are serial bullies who take aim at one employee until that person quits and then target another.
In some instances, bullies perceive their positions are threatened and work to eliminate the competition.
Don’t underestimate the financial costs of bullying. Personal harassment creates an unhealthy environment and can result in increased:
Add to that decreased productivity, motivation and morale, as well as reduced customer service and customer confidence, and it’s easy to see how the costs can add up.
Bullying can also expose a business to grievances, lawsuits and damages because employees are increasingly suing on grounds that by tolerating or not actively banning the behaviour, an employer has violated a staff member’s fundamental right to be protected from physical and mental risks at work.
So, to protect your employees as well as help reduce your company’s legal exposure, you may want to consider including anti-bullying measures in your written employment policy handbook. To be effective, your company’s anti-bullying policy should:
1. Apply to everyone, including management, clients, independent contractors and others who deal with your company.
2. Clearly define and provide examples of what constitutes unacceptable behaviour.
3. State your company’s commitment to preventing workplace bullying and the consequences for violating the policy.
4. Encourage employees to report incidents of bullying and outline a confidential process for reporting them.
5. Assure that no reprisals will be made against reporting employees.
6. Outline the procedures for investigating and resolving complaints.
In addition, your company should:
Bullying can take many forms. Some are obvious such as verbal abuse, threats, taunting and intimidation. Others are less up front and can include:
It’s not always easy to distinguish bullying from strong management or constructive criticism. In some cases, what appears to be bullying may be a personality clash. Be sure your policy takes the various forms of bullying into account and protects managers and supervisors, as well as employees.
When Dealing with Office Romances
Prevent Disruption in Your Business
Professionals are judged for their professionalism. Well, at least they should be. But when it comes to workplace romances, sometimes colleagues judge each other based on who’s dating the boss.
|“Sexual harassment does not include voluntary or consensual sexual contact between employees but “the Supreme Court has stated that managers who involve themselves with employees do so at their peril, as employees may later indicate that they felt coerced into the relationship even if that was not the manager’s intent.”
— From the Manitoba Civil Service Commission’s
A Love Contract?
A few companies have adopted love contract policies, usually for top-level executives, CEOs, officers and, in some instances, directors.
“Employees flirting with each other, or becoming involved in a romantic or sexual relationship, are not harassing each other, as long as the relationship is consensual. If one of the employees changes her or his mind, and the other person persists in trying to continue the relationship, this is harassment.”
— From the Canadian Human Rights Commission’s
In the past, some companies simply banned intra-office fraternization. But that often turned out to be largely unworkable. Thechemistry of human attraction has its own rules, and with long hours, long commutes and limited social lives, for many people these days, the workplace has become a natural environment for making friends and finding romance.
So much so that in one survey of Canadian employees, 63 per cent of respondents said they had been romantically involved with a co-worker. Another survey found that 17 per cent of working Canadians met their “significant other” at work.
But while workplace relationships may spark improved attendance, higher productivity and reduced illnesses, when those relationships turn sour, the fallout can disrupt the smooth flow of business.
Conceivably, the most destructive relationships are those between a manager and a subordinate. Most experts agree that these couples can promote jealousy and low morale among colleagues and open a company to charges of sexual harassment if the relationship ends badly. Moreover, such relationships can weaken a company’s credibility and destroy trust if co-workers start to think promotions depend more on who you know than on performance.
Fewer than one-third of Canadian companies have a romance policy. Instead, most take the position that relationships are private and inevitable given the long hours spent at work and that they are private. In general, businesses try to restrict activities that can harm business.
If your business is looking to institute guidelines for workplace dating, you want a policy that allows people to make decisions about their personal lives while limiting the possibility of sexual harassment litigation, conflicts and disruptions in the workplace. Here are four considerations:
1. Spell out standards for behaving responsibly with each other and with colleagues. Stress that “corporate couples” are expected to behave professionally at all times when they are on company business.
2. Clearly note that romance between a boss and a subordinate is inappropriate and subject to corrective action. The ethical move would be for the couple themselves to seek a change in the structure of their work relationship. While you don’t want to fire a manager for dating a staff member, you might want to transfer one or both of them to different departments.
3. Discourage displays of affection, sexual innuendo, suggestive comments and sexually oriented joking. As an employer, your business is legally bound to do everything possible to prevent sexually harassing behaviour.
4. Be clear that if an employee is not interested in, or receptive to, an advance from another employee, it should end there. Flirting and other acts of affection can be preludes to dating, but only if the receiving party is comfortable with them. They can also be preludes to sexual harassment claims.
Get All TheFacts to Help Avoid Criminal Charges
The Criminal Code of Canada,as well as provincial laws, makes employers and their representatives criminally liable for neglect for certain safety and health violations.
The federal law covers all organizations, from corporations to partnerships, and their representatives, which includes directors, partners, employees, members, agents and senior officers.
Provincial occupational health and safety legislation imposes significant penalties on individuals and organizations convicted of negligence related to workplace safety.
For example, under the Ontario Occupational Health and Safety Act, individuals convicted of an offence may be fined up to $25,000.00 and/or face up to twelve months’ imprisonment on each count. Organizations may be fined as much as $500,000.00 on each count. Fines of more than $1,000.00 are also subject to the 25 per cent Victim Fine Surcharge.
Of course organizations cannot be sent to prison, so the federalCriminal Codeincreases the maximum fine for a summary conviction, a less serious offence, from $25,000.00 to $100,000.00. There is currently no set limit on fines for indictble or more serious offences. Individuals who are convicted of indictable offences under theCriminal Codecould face lengthy terms of imprisonment – up to life imprisonment where an individual is convicted of criminal negligence causing death. In addition to fines, theCriminal Codeallows probation conditions for organizations, such as restitution to a person for any loss or damage suffered, and requires the organization to provide information to the general public about the offence, including the sentence and any measures taken to reduce the likelihood of committing further offences.
Under theCriminal Code, individuals and organizations are liable for criminal prosecution if they do anything –or
fail to do anything— that it is within their duties and responsibilities in a way that shows “wanton or reckless disregard for the lives or safety of others.”
In other words, individuals who direct or manage the work of others must take every reasonable precaution to protect those employees from workplace danger, or be open to criminal prosecution.
For example, a factory employee who turned off three separate safety systems could be prosecuted for causing death by criminal negligence if employees were killed as a result of an accident that the safety systems would have prevented.
On the other hand, if three employees each turned off one of the safety systems, each thinking that it was not a problem because the other two systems would still be in place, they would probably not be subject to criminal prosecution because each one alone might not have shown reckless disregard for the lives of other employees.
Nevertheless, although the individual employees might escape prosecution, the employer may not because, in effect, it was the organization, through those three employees, that turned off the three systems.
To show intent, the law requires that the senior officer or officers responsible must have departed markedly from the expected standard of care. The organization might be convicted if, for example, the director of safety systems failed to give a negligent
employee basic training necessary to perform the job.
While accidents are inevitable in any business, to help protect your organization and its representatives from prosecution it’s essential to keep accurate records and investigate each injury. Proper attention to these details will uncover information you can use to make your workplace safer in the future.
Accidents seldom have a single cause. Use careful thought and sound judgment when investigating. And get all the details. Here are the elements of a successful inquiry:
Question the injured employee and all witnesses as soon as possible. Ask witnesses to draw sketches if they can’t adequately describe the scene. Keep asking questions. Don’t settle for simple responses such as “employee negligence caused it” or “it was faulty equipment.”
Trynot to ask “Why?” It’s better to ask “What?” because it is more objective and doesn’t imply fault. For example, “What were you doing at the time of the accident?” rather than “Why did this happen?” Or “What caused the equipment to fail?” rather than “Why did your equipment fail?”
Make sure you keep all records required under federal and provincial laws and regulations.
Involveother employees in the inquiry. It makes them feel like they’re a part of the effort to make your workplace safe. Conduct confidential interviews and take suggestions seriously. Use employee awareness, acceptance and participation to your advantage. Your ultimate goal is to eliminate accidents, not employees.
After you compile the details and witnesses statements, use them. Compare the findings with other accidents. Look for patterns such as:
Environment: Are the accidents occurring in the same department?
Time: Are the accidents occurring at a certain time?
Type of Injury: Do the accidents involve the same type of injury?
Equipment: Is it always an equipment failure or is the equipment mishandled?
Staff: Is the same employee having the accidents or are different employees involved? If accidents are random, are the employees getting proper training?
A Linguistic Perspective
If your company employs immigrants or others who speak different languages, it’s possible that some accidents happen because of a communication failure. If you suspect a language problem, ask the following:
When Communication Can Backfire
If you think there’s been an increase in employees with an entitlement mentality at your company, you may be right. It’s a trait that seems to be more prevalent as increasing numbers of Millennials (also called Generation Y) enter the workforce.
Up and Coming
Just ahead of Gen Y is Gen X, the group that will succeed Baby Boomers as managers over the next several years.
So how does that generation compare to current management? Research shows that Baby Boomers outrank them in business knowledge, are more likely to apply functional and technical expertise on the job, and are better at coaching, assisting personnel development and managing project execution.
But the Xers have the upper hand when it comes to analysis, strong work commitment and the inclination to strive to self-improvement. Some predict that Generation X managers will complete a shift to a more collaborate style of management that tries to generate a collective buy-in to achieve goals.
Baby Boomers are still mostly in charge, but in many ways, they feel disillusioned by the changes they see in younger workers. They see younger workers treating jobs as though they were both an entitlement and disposable.
Those same younger workers see older managers and supervisors as rigid and wonder why, in this increasingly mobile world, they remain in jobs that are no longer satisfying.
And this can create friction on the job. Research shows that employees with a sense of entitlement have overblown views of their abilities and the recognition they should receive. These “entitlement-minded” individuals can create numerous problems for co-workers and supervisors. They are also likely to abuse their colleagues and suffer from job frustration.
These psychologically entitled employees tend toward:
Exacerbating the problem: Trying to communicate more with these employees is the wrong approach. In fact, it can backfire. Trying to improve the entitlement-minded employees’ behaviour by increased communication and feedback may aggravate their frustration and abusiveness.
On the face of it you would think the most effective approach would be to boost the frequency of evaluations and amount of job-related information. But this can have the opposite effect and increase the job-related frustrations reported by these employees.
Why? Because evidence suggests that psychological entitlement is a perception that can distort the messages conveyed in supervisor communication. Thus, these employees can perceive evaluation as criticism, reject any information that doesn’t match their entitled worldview and perceive high levels of supervisor attention as a reaffirmation of their value.
How do you spot psychologically entitled individuals among your employees and potential hires? Look for people who:
And how do you deal with them? Here are six practical suggestions and insights:
1. Remove as much ambiguity as possible. Document who performs specific tasks so credit and blame are accurately placed;
2. Ensure clarity about who is responsible for what;
3. Guard against behaviours that smack of “office politics” by entitlement-minded employees;
4. Keep an eye out for abusive behaviour and take steps to prevent it;
5. Consider if it would be cost-effective and successful to send entitled employees for professional counseling and coaching; and
6. Fire the errant employees if you determine that there is no solution to the problem that is not too costly in terms of time and money.
Companies are increasingly turning to social recruiting — using social media outlets to find applicants.
|Fine Tune Your Strategy|
|If your business wants to socially recruit, keep in mind that each platform attracts different types of people and that looking for applicants online doesn’t work for certain jobs.For example, mainstream blue-collar jobs in trucking, heavy industry or mining may require the traditional approach.On the other hand, high paid corporate positions, which are generally filled with the help of a head-hunter, may be able to benefit from a bit of social recruiting.
Social media sites vary in terms of who you can attract. If you run a small grocery store, potential candidates are likely logging onto more casual sites such as Facebook. If your company needs a director of human resources, LinkedIn may be the best route.
Twitter works well for broadcasting. Tweets can direct applicants to your business’s Web site or Facebook page. And tweets offer the potential for re-tweeting, which can lead to a viral recruitment campaign.
Cost and efficiency are among the reasons. Plus, Canada has one of the highest rates of social media usage in the world.
Here’s a cost comparison between old school and contemporary head-hunting.
Using traditional methods, the estimated cost of filling a $60,000-a-year position looks something like this:
With a social recruitment approach, the process might look like this:
Total: The cost of cheese, wine and whatever refreshments you might want.
As social recruiting becomes increasingly effective in luring candidates, your company needs to plan strategies to gain the upper hand. Here are four tips on how to snare the crème de la crème:
1. Think 80/20. That’s the Pareto Principle, and it means that 20 per cent of something is always responsible for 80 per cent of the results. For example, 20 per cent of customers account for 80 per cent of revenue.
Start with the large sites. LinkedIn, Facebook, YouTube and Twitter will generally provide the 80 per cent result, particularly if you cross publish. Try to avoid redundancy. A little repetition is fine, but tweeting the same message seven times in one day is overkill.
2. Get involved. Participate in conversations with substantive and thoughtful content. Look for individuals who are genuinely interested in your company’s business and industry. If you connect with a specific person, individualize your approach. And always be responsive. If someone asks you a question, find a way to respond, even if you have to take the conversation offline.
3. Be real. In order to see the “real” candidate you, too, must be authentic. Social recruiting is about relationships. Your company and its representatives should be forthright about the business, its culture and its jobs. In a hiring environment, people generally connect with people, not brands.
Connect with as many social networkers as possible – each is a potential referral to the right person for the job your company wants to fill. Watch how individuals connect online. If they are actively engaged, that trait may transfer to the job.
4. Don’t be all work and no play. Engage in the high-tech equivalent of chit-chat. Have fun and share interesting news and bits of information.
If your business has some colourful history, share the stories. If your company had a recent get-together, post some pictures. The fun and entertainment on social sites is limited only by imagination.
Dig in and build your online presence now, even if you don’t have any hiring plans. By making connections and creating a vibrant online community, your enterprise will be prepared to reach a broad audience for less money when it does decide to fill a few openings.