R W BH Workplace Violence & Harassment Nurse Educators

Presentation Sponsored by the Registered Nurses Association of Ontario (RNAO) RLegal W Assistance BH Program Nurse Educators

Christopher Bryden

Ryder Wright Blair & Holmes LLP rd 333 Adelaide St. W., 3 Floor RWToronto, ON BH M5V 1R5 Structure of Presentation

. Statutory/Legislative framework (Bill 168)

. Definitions – what is and is not harassment or “workplace bullying”

. Legal avenues, and consequences for workplace violence and harassment R W BH . Putting it together – case law examples Bill 168 – OHSA Amendments

. Bill 168 included a number of amendments to Ontario’s Occupational Health and Safety Act

. Implemented in part in response to the murder of Lori Dupont, a nurse at a Windsor hospital who was killed by her ex- RboyfriendW and doctor atBH the hospital Bill 168 – OHSA Amendments

. Key amendments included obligations on employers to: . Develop and implement policies regarding workplace harassment and violence . Provide information and instruction to workers regarding these policies . In the case of workplace violence programs, employers must: . Include procedures for summoning assistance immediately when workplace violence occurs

. Conduct risk assessment and put measures in place to RrespondW to those risks BH Bill 168 – OHSA Amendments

. Violence and harassment policies must:

. Allow employees to report violence/harassment

. Spell out how the employer will investigate and respond to such reports R W BH Bill 168 – OHSA Amendments

. Bill 168 also added a provision obligating employers who are aware, or ought reasonably to be aware that domestic violence may occur in the workplace to take every precaution reasonable in the circumstances to protect a worker at risk of physical injury R W BH Definitions of harassment, violence, bullying . OHSA defines workplace violence as: . (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) 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 Rinjury to Wthe worker. BH Definition - Harassment

. OHSA defines workplace harassment as: . 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

. Various cases have held that a “course of Rconduct”W can include aBH single act Definition - Harassment

. Difference between harassment under the OHSA and the Human Rights Code . Harassment under the Human Rights Code must be in relation to a “prohibited ground of discrimination”: . Race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender Rexpression,W age, recordBH of offences, marital status, family status or disability Definition - Harassment

. The jurisprudence has provided the following examples of what bullying might include: . Persistently picking on individuals either in public or in private or shouting at staff. . Punishing employees by removing responsibilities for minor infractions or giving trivial tasks to employees. . To overload an individual with work and reducing time frames to complete the work. . Acting towards employees with a condescending attitude. R. Demeaning,W belittling, or harassingBH other employees Definition - Harassment

. Further examples: . Spreading rumours, gossiping about or damaging a co- worker’s reputation. . Issuing hostile and threatening emails or inaccurate memos about an employee. . Threatening a person’s job security . Practical jokes that offend individuals . Unwelcome remarks, slurs, jokes, taunts, or suggestions about a person’s race colour place of origin, religion, age, marital status, family status, disability, gender or sexual orientation and background. R. Written Wor verbal abuse or threats.BH Legitimate, bona fide management is NOT harassment . Management has a right to reorganize and adjust the way work is performed . Management has a right to impose deadlines . Management has a right to insist that work be of a satisfactory quality . Management has the right to criticize work and ask for improvement, provided it is done respectfully . Management also has the right, and in many cases an obligation to warn someone that if they do not improve Rtheir performance W they may face BH discipline or termination Recourse and Consequences

. If you believe there is a risk of workplace violence, for yourself or others, report it immediately to the employer

. If there are threats, actual violence or any emergencies in the workplace, report to Rpolice/emergency W authorities BH immediately Recourse and Consequences

. In the case of workplace harassment . If you are unionized, speak to your union . Whether it is “Code” or “non-Code” harassment, the dispute will almost certainly have to be dealt with at arbitration if it arises out of the workplace . “Weber” (Supreme Court of Canada, 1995) R W BH Recourse and Consequences

. In the case of harassment, if you are not unionized . Utilize employer’s policies on workplace harassment . Ministry of Labour – MOL has stated that its inspectors will inspect and determine if employers are complying with their new Bill 168 obligations . BUT – MOL has said that its inspectors will not investigate, resolve or adjudicate upon claims of RworkplaceW harassment BH Recourse and Consequences

. There is also case law supporting that bullying/harassment may constitute “constructive dismissal” . HOWEVER – has to be very serious behaviours . The employment contract has to be repudiated . Generally, work environment will have to be

intolerable for a finding of constructive dismissal R. And an actionW for constructiveBH dismissal is complicated and difficult for a plaintiff Consequences

. If you are found, by an employer or ultimately an arbitrator or judge to have harassed or bullied a coworker, discipline up to and including termination may result

. As cases indicate, this may be true even if Rthe intentions W were “innocent” BH Putting it Together – Case studies

. Cases involving workplace violence

. Cases regarding complaints of harassment, bullying

. Cases regarding discipline, termination over harassment, bullying R W BH . Constructive Dismissal Case studies

. Cases on workplace violence

R W BH Threats may qualify as “workplace violence” . Kingston (City) v. C.U.P.E., Local 109 (Hudson Grievance) (2011, Arbitration Case) . Employee with 28 years seniority was terminated for comments made to a coworker . Coworker asked the grievor not to discuss a deceased coworker, stating “he’s dead”. The grievor responded: “You will be too”. . She was fired for these comments . The termination was upheld by the arbitrator, who made the following comments: . “First, the Bill 168 amendments have clarified the way in which the workplace parties, adjudicators, arbitrators and judges, must think about incidents involving the inappropriate use of language in the workplace. The amendments make it clear that language that is vexatious and unwelcome is harassment, and very serious in its own right. But language that is made in direct reference the end of a person's life or that suggests impending danger, falls into a category of its own. This is not just language, it is Rviolence.” WBH Kingston(Hudson Grievance), cont’d . “Incidents of threatening at work have been addressed with increasing seriousness. It is becoming rare for an arbitrator to be persuaded to consider such incidents less than serious, when it is suggested for example, that the offending employee was "just blowing off steam", "not really serious", "just trying to get a reaction", or "didn't really mean to threaten”.”

. “…[S]uch language is not tolerated in environments where safety is a concern… It ought not to be tolerated in the workplace. With greater and greater frequency, the trend has been to consider such misconduct at the grave end of the scale. The Bill 168 amendments, in my view, should, and will, reinforce that trend, and raise the bar on the factor of RseriousnessW of the offence”. BH Case Studies

. Cases regarding complaints of harassment, bullying R W BH ATU & TTC (Stina) (2004)

. Leading arbitration case on the issue of “non-Code” bullying/harassment . Grievor was a mechanic with the TTC . Filed a grievance alleging that his workplace had been poisoned by the harassment and bullying of a particular supervisor . The grievor established through the evidence that he was treated differently, bullied and targeted by Rthis managerWBH TTC (Stina), cont’d

. Examples of manager’s behaviour: . Made demands of the grievor not made of other employees . Restricted grievor’s use of the phones in a way that had not been imposed on others . Did not provide the grievor with the training or tools to perform his work…Yet complained about his work and threatened to discipline him over it R. Was yelledW at and threatenedBH by the supervisor TTC (Stina), cont’d

. The grievor complained to management, who took no concrete actions to address or even look into his complaints

. He eventually went on sick leave due to the stress R W BH TTC (Stina), cont’d

. From the arbitrator: “Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single action, which has a harmful affect, may also constitute harassment.” . Grievance allowed – company and the individual manager ordered to pay $25,000 to the grievor, “jointly and severally” R W BH TTC (Stina), cont’d

. Lessons . One incident may constitute harassment . Serious and truly intolerable conduct is required to make out a case of bullying/harassment . Medical evidence important in these cases . Workplace harassment may lead to significant damages awards . Managers and supervisors may be held RindividuallyW liable BH U.N.W. (Thomas) & Nunavut, 2003 . Arbitration case involving a claim of harassment and a poisoned work environment . The grievor was a nurse in a small community in northern Canada . She became the target of the town’s campaign to have her removed from her post. . Members of the community heckled her when she was out and about in the town, and even

sent a petition to the Ministry of Health seeking Rher termination.W BH U.N.W. & Nunavut, cont’d

. In response, the ministry conducted an investigation. . While interviewing the nurse, the lead investigator asked invasive and offensive questions, inquiring about whether or not she was suffering from menopause, if she was sick, and if permission would be granted to speak with her family physician. . In addition, the investigator’s questions to community members had the effect of further demonizing the nurse. R W BH U.N.W. & Nunavut, cont’d

. The arbitrator allowed the grievance, determining that the grievor had suffered harassment, not only from the community but from the employer’s investigator. . The arbitrator also found the employer was aware that the nurse was suffering abuse and that her position was being threatened, but did nothing to address the issue. . In fact, it made matters worse through its faulty investigation. The fact that the townspeople were the chief antagonists did not reduce the employer’s Rresponsibility W to act on behalf BH of its employee. U.N.W. & Nunavut, cont’d

. Lessons . Employers can be held liable for the actions of its employees, and others where it knows or ought to have known an employee was suffering from workplace harassment and bullying R W BH Nunavut v. P.S.A.C. (Kellett), 2006 . Arbitration case alleging bullying, a poisoned work environment, and termination . The grievor, a newly hired nurse was not given sufficient guidance on her duties and responsibilities. She was uncertain what was expected of her. . When she sought clarification from managers and coworkers, she was either derided as Rincompetent,W or mocked. BH Nunavut (Kellett), cont’d

. Her coworkers consistently excluded her from the social fabric of the workplace (she was the only employee not invited to coworkers’ birthday parties or to join others on daily coffee breaks). . The bullying escalated, creating outright

hostility and teasing in the workplace by RmanagersW and coworkers,BH sometimes in front of patients. Nunavut (Kellett), cont’d

. When the nurse brought her complaints to higher echelons of management, the employer’s response was to question her competence and then fire her. . She grieved her termination through her union. . The arbitrator determined that the nurse had suffered bullying and harassment on the job. . As a result, she was never given a chance to perform her job adequately. . She was ordered reinstated to her position in a RworkplaceW free of harassmentBH and bullying, with full compensation for all lost pay. Case Studies - Respondents

. Cases involving individuals who have been disciplined or terminated for harassment or bullying R W BH United Nurses of Alberta (Daw Grievance), (2008) . Arbitration case against a three day suspension . Nurse was suspended for behaving rudely to coworkers in front of other coworkers and in some cases patients . Arbitrator agreed that her comments constituted harassment and upheld the Rthree dayW suspension BH United Nurses of Alberta (Daw Grievance), (2008), cont’d

R W BH United Nurses of Alberta (Daw Grievance), (2008), cont’d

. Called a female coworker an extremely vulgar and arguably gendered curse word R W BH United Nurses of Alberta (Daw Grievance), (2008), cont’d . A nurse asked the grievor for advice, then went to a different coworker for a second opinion. The grievor saw this and . “spoke to [the co-worker] in harsh, angry and loud terms which [the co-worker] thought could be heard by co-workers, patients and family members. She said she felt stupid and

embarrassed for asking a question, and began to Rcry.” WBH United Nurses of Alberta (Daw Grievance), (2008), cont’d

. Grabbing the backsides of other nurses and coworkers and making sexualized comments in front of coworkers and patients R W BH Universal Showcase Ltd. (2005)

. Arbitration case alleging unjust suspension. . During a health and safety presentation, the Grievor started shouting comments to the effect that the Company’s return to work program was too aggressive, and flailing his arms about, despite requests to stop. . The presenter felt uncomfortable and intimidated, and eventually started to cry and left the room. . The Arbitrator recognized that the Grievor cannot be responsible for the fact that he is naturally loud and imposing, but he can control how he uses his voice and physical size. . The arbitrator concluded that the grievor was abusive towards the presenter and that he ought to have known he was intimidating her. This was found to be “bullying” behaviour. . The grievor did not apologize or acknowledge his misconduct, his bullying and insubordinate behaviour was serious enough to warrant a Rsuspension andW the grievance was dismissed.BH Amark Canada Ltd. (2013)

. Arbitration case against a termination, which stemmed from an incident when the grievor, a server at a restaurant, pulled down the pants of a male coworker. . The co-worker was off-duty at the time and a patron in the restaurant. R. This was W seen by coworkers BH and patrons. Amark Canada Ltd. (2013), cont’d

. The arbitrator remarked that the Grievor’s intent was not important. The Grievor may not have intended to humiliate or embarrass her co-worker, however, lack of intent may only be a mitigating factor to consider in determining the penalty. . “Horseplay” was common in the workplace, however, it was consensual . The Superbowl incident was not consensual, and it was clearly premeditated . The arbitrator concluded that this lack of consent made the Superbowl incident cross the line from horseplay to harassment. . Further, there was a distinction between the horseplay in the kitchen vs. the Superbowl incident which was in a public space.

R. Grievance Wwas dismissed. BH Universal Showcase Ltd. and Aramark . Lesson: intent is not important . The individual should be aware of the impacts that his/her behaviour is or might reasonably be having on others . It is not a defence to simply say “But I didn’t mean to bully or harass them” . Intent may be a mitigating factor, but does not

RabsolveW a respondent ofBH all liability Case studies

. Constructive Dismissal

R W BH Constructive Dismissal

. The test to determine whether an employee has been constructively dismissed is whether a reasonable person taking into consideration all of the circumstances would determine that the employer altered an essential term of the employee's employment contract such that it can be said to have terminated the contract: see Farber v. Royal Trust Co., SCC, 1997. R W BH Constructive Dismissal

. It is a fundamental and implied term of all employment contracts that employees are entitled to be treated with civility, decency, and respect. A breach of that fundamental term gives rise to a claim of constructive dismissal (Lloyd v. Imperial Parking Ltd.).

. Where an employer fails to prevent the harassment of an employee by a co-employee, this is a breach of the duty owed by the employer to employee and can amount to constructive dismissal where the employer, aware of the situation, fails to take reasonable steps to prevent the behaviour (Stamos v. Annuity Research RMarketingW Service Ltd.). BH Constructive Dismissal

. While abusive treatment between co- employees in a non-supervisory relationship can be sufficient to repudiate an employment contract, not every situation in which employees cannot get along will be grounds for constructive dismissal (Chartright Air Inc. v. DePaoli). R W BH Constructive Dismissal

. Allegations of harassment must be supported objectively by the evidence and cannot be based simply on the employee's subjective perceptions of the conduct in question. . A reasonable person standard is used to assess at what point, if at all, an employee is being subjected to repeated harassment by a colleague and is entitled to treat her employment as having been repudiated by the Remployer W (Lamb v. Giggs-Gage BH Architects) Saunders v. Chateau Des Charmes Wines (2002) . Ontario Superior Court case alleging constructive dismissal . Plaintiff was a long-time employee with generally positive performance appraisals. . Saunders made an accounting error that prevented the sales staff from receiving their bonuses. . Saunders’s supervisor was angry about the error and telephoned him, accusing him of Rlying aboutW his interest inBH increasing the company’s sales. Saunders, cont’d

. Angry outbursts from the same supervisor became frequent in subsequent months over relatively minor issues, such as typos, shortages of fax paper, and a client’s unfounded complaint that he could not reach his sales rep. . One minor error resulted in the supervisor yelling and swearing at Saunders for several minutes over the telephone. . This conversation ended with the supervisor telling Saunders to take a demotion or leave of absence to “collect his head”. R W BH Saunders, cont’d

. Saunders took a leave of absence and alleged constructive dismissal. . Saunders felt that his supervisor’s conduct was jeopardizing his health and had seen a doctor who suggested that Saunders take the leave to prevent the deterioration of his health. . The Judge found that the supervisor intended to humiliate or embarrass Saunders and that the treatment was a sufficient severity and effect on Mr. Saunders to amount to a repudiation of the RemploymentW relationship. BH McMillan v. Selectrucks of Toronto Inc., 2011

. Ontario Superior court case . Plaintiff sold trucks for Selectrucks . Plaintiff resigned and alleged that he had been constructively dismissed on the basis that a new manager mistreated him and showed favourtism to other coworkers, and that this constituted bullying/harassment . Case was dismissed on basis that the plaintiffs grievances, while real and bona fide, did not rise Rto the level W of a constructive BH dismissal McMillan, cont’d

. From the judgement: “Not every situation where employees cannot get along will be grounds for finding constructive dismissal, even where an employee cannot get along with his manager. And not every misstep or incivility will ground a constructive dismissal. ” R W BH McMillan, cont’d

. Plaintiff complained that the supervisor rebuked his attire in front of coworkers . Judge commented that management had the right to make and enforce a dress code, and went on to state: . “A public rebuke may sting more than a private criticism. However, public criticism also reinforces the dress code with other employees, making the standard clear to all. I accept that this incident was a sincere reflection of [the supervisor’s] views: he was not targeting [the plaintiff] for criticism on a personal basis, but rather responding to a situation that arose in front of him. The criticism, while perhaps harsh, was RaddressedW to the issue of properBH business attire.” McMillan, cont’d

. Plaintiff complained that the manager had harshly criticized the plaintiff for displaying a damaged truck in the showroom . Judge’s ruling: “The criticism was valid. The manner in which it was expressed was harsh, but was in keeping with Mr. RKenny's W usual style of BH expression.” McMillan, cont’d

. Plaintiff complained that manager had made derogatory comments to him (e.g. “real men don’t eat quiche or wear headphones”). . Judge’s ruling – “I believe that [the plaintiff] felt these criticisms in exactly the spirit in which they were intended. The incident is Rtrivial.” WBH Constructive Dismissal

. Lessons . Difficult, complicated proceedings . Question is not just whether bullying, harassment occurred . But whether the bullying, harassment was of such an extreme nature that it constituted a complete repudiation of the employment contract . Difficult to establish this R. Only successfulW in the mostBH serious of cases Conclusions, Q&A

Christopher Bryden

Ryder Wright Blair & Holmes LLP rd 333 Adelaide St. W., 3 Floor RWToronto, ON BH M5V 1R5