Although traditionally the employee’s physical well-being was the sole criterion by which a “harassment free” environment was analyzed, at the current stage of the law employers are increasingly expected to provide for the employees’ psychological well-being as well. This is especially the case in light of the recent amendments to the Occupational Health and Safety Act (OHSA). In the following paragraphs I provide a brief overview of the law on the subject. I suggest that employers should be more mindful of this ongoing evolution. The reason being: what once was not considered “violence,” “harassment,” or “bullying,” today might be. This shift has implications on the employer’s legal obligations vis-à-vis the injured employee. This is because the employer may be held vicariously liable for actions it did not have to answer in earlier times.

At common law employer liability is based on an implied contractual duty of care. The employer is obligated to provide for the safety of its employees. A number of cases suggest that once harassment reaches a certain level of intensity it will amount to an actionable wrong for which the employer may be held liable. In addition to the traditionally recognized torts of battery and assault, the three areas of the law in which an employee could bring an action against an employer are: the tort of nervous shock; negligence; and, constructive dismissal. The duty applies to management level employees as well as to co-workers. The employer may, therefore, be held liable and be required to compensate for the wrongs of its employed subordinates. Of the two torts, only one relates directly to the psychological suffering of the plaintiff.

A worker is also entitled to benefits for mental stress under the The Workplace Safety and Insurance Act. However, mental stress must be precipitated by “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. The worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.” Jurisprudence from the Workplace Safety Insurance Appeals Tribunal suggests that the circumstances must generally be unexpected, traumatic or represent a potential form of violence.

The Human Rights legislation is more robust and it too provides an avenue through which the employer might be expected to guarantee the psychological safety of those at its employ. According to the federal statute and its provincial counterparts, every employee has the right to “freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.” The employee is entitled to bring a claim against harassment under the Human Rights regime only on one or more of the abovementioned enumerated grounds.

Arguably the most important shift in the law took place at the end of last year with the Occupational Health and Safety Act (OHSA). Under the already enacted but not yet consolidated OHSA, “workplace harassment” is defined broadly and is bound to receive liberal interpretation in the courts. According to the Act “workplace harassment” means “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.” And “workplace violence” is said to encompass (a) “the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker” (b) “an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,” (c) and even “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.” This shift is significant as it allows casting a wider net on activity that would otherwise not be classified as “harassment,” “violence,” or “bullying.” It also calls for the inclusion of a broader, more unpredictable and less definable form of psychological injury.

Under OHSA the employer is expected to prepare a policy dealing with all matters that relate to harassment and discrimination which is to be reviewed at least once a year. The employer is also expected to develop a program in order to implement the policy. Finally, employers are obligated to post the policy in visible places around the workplace. The amended legislation involves an array of additional procedural and administrative nuances that the prudent employer should take a note of.

In sum, “harassment,” “violence,” and “bullying,” are no longer easily definable concepts. As such, it would behoove the employer to be less hasty in brushing off what once could be regarded as mere workplace “disputes” or “humorous conduct.” With the latest shift in the law, employers can expect an increasing number of claims and complaints on issues involving violence and harassment - complaints that would in earlier times have little to no legal bearing at all. To avoid this confusion and to create a safe environment, the employer would be prudent to provide for an elaborate anti-harassment/anti-violence workplace policy. The employer would also do right to reinforce such policies via mandatory educational sessions involving all employees. Failure to take these measures could increase the employer’s risk of liability.

NOTE: This article relied in part on Carla Gonçalves Gouveia’s “From Laissez-faire to Fair Play: Workplace Violence & Psychological Harassment.”