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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about workplace bullying and harassment in Ontario.  If you have any understanding of what’s going on in workplaces you would notice that workplace harassment and bullying is on the rise.  There are many reasons for this.  Some of the reasons are: (1) we’re spending increasingly more time at workplaces—even more time than what we spend with our families and friends. By virtue of spending more time at work, it is bound to happen that there will be frictions between employees and coworkers and that gives rise to all kinds of issues including bullying and harassment. (2)  Workplaces are getting more stressful.  There are more demands from the employers.  Nature of economy is changing, which is adding another layer of stress on employees.  Finally, (3) In the workplace employees are often put in competition with each other and that naturally gives rise to friction and all kinds of issues which can emerge in the form of bullying and harassment. 

Today’s course is about workplace bullying and harassment.  The fundamental things that we will discuss will explain what workplace bullying and harassment actually means so that you can understand and can apply it in your circumstances.  (I) You will know whether you are experiencing workplace bullying and harassment within its legal definition in Ontario.   (II) Secondly, it will provide some basic steps that you want to undertake in order to prevent workplace bullying and harassment against you; or, (III) if you are experiencing bullying and harassment, then what kind of remedies you can get through that process.  Let’s get right into it.  Our usual disclaimer comes first, that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or a paralegal.

Let’s talk about workplace harassment.  The first question that should come to your mind is: what you are experiencing is that workplace harassment or bullying or not?  Go to Google and then you type in a legislation called “Occupational Health and Safety Act”.  It’s available on Canlii.  Click on that. This is an Ontario legislation that deals with all kinds of health and safety matters including, workplace bullying and harassment.  This is the Act that you can review at your own leisure.  Let’s get into workplace harassment and see if we can find a definition. Here we have.  This is in Section 1.  It is called the definition section.  Workplace harassment is defined here. I want to go through this slowly with you because we’re talking about the definition and I want you to really, clearly understand it.  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”.  If you carefully read this over and over again you will get the theme out of this specific definition.  The definition of workplace harassment is extremely broad.  There’s a good reason to keep it so broad because the kind of circumstances that can be defined or can be explained as harassment are so various and are so significant/so diverse that a narrow definition would be too restrictive.  It would not cover all of the scenarios.  For instance if the legislators have put in sarcasm, bad jokes, inappropriate language—is harassment then that would have been too narrow.  Remember it says vexatious comment or conduct.  The conduct or comment has to be vexatious.  Vexatious is a very broad word with so many different interpretations.  That conduct has to happen against a worker in a workplace and then that is known or ought reasonably to be known to be unwelcome.  Either the person who is bullying or harassing the other person—either the person knows or reasonably to be known—meaning that when people look at that situation objectively and they look at that conduct, they will come to the conclusion that yes, this was a vexatious comment or conduct.  It would come under the definition of workplace harassment.  What is the key message here?  It is that workplace harassment, by definition in law, is a very, very broad definition.  It can cover a variety of circumstances.  That’s something to keep in mind.  If you scroll down, I want to show you two other things: (1) workplace sexual harassment it has a separate definition (separate meaning) and you can review it; and then (2) workplace violence is a separate category and it has a separate definition.  We’re not covering all of those today.

We’re focusing on workplace harassment.  What you want to remember is that there is legislation in Ontario that deals with workplace harassment which is called the Occupational Health and Safety Act.   We just looked at that and the definition of workplace harassment is in Section 1(1).  You also may have noticed that there was no word bullying in that Occupational Health and Safety Act.  Primarily, because the definition of harassment is so broad that it will include bullying anyways and so bullying is not separately defined but workplace harassment as it’s defined in the Occupational Health and Safety Act does include all kinds of bullying. Let’s go through some examples and these are very, very few examples.  There are so many circumstances where because of that definition you can find the conduct to be vexatious enough and to fall under the category of workplace harassment.  Let’s look at some of the examples: insulting language, inappropriate language, name calling, swearing.  These are some of the obvious simple examples of workplace harassment. Jokes, embarrassing jokes, hurtful jokes, humiliating jokes about a coworker either in his or her presence or not, could constitute workplace harassment.  Gestures, body language—this happens quite often and we get a lot of complaints where the person who is bullying or harassing is not actually saying anything verbally but his or her gestures and body language is so inappropriate that it can amount to workplace harassment.  I’ll give an example of this.  It was from one of our cases that we dealt with, where this particular employee would sit in an open office environment.  The supervisor/the manager will come in and she will say good morning or hello to each one of them while specifically ignoring this person.  This happened on a daily basis.  If you experience that kind of behavior every morning, every day of the week when you come to work you can imagine what kind of cumulative impact this will have on that person.  That kind of behavior would constitute harassing behavior.  Similarly, physical touching (any inappropriate physical touching) which is unwelcome can amount to workplace harassment and can amount to sexual harassment as well. You want to look at both definitions.

Another important thing that you want to notice is interference in work.  I want you to understand this a bit more interference in work there are the 2 kinds of interference that a manager or supervisor can have in your work: (1) one is sort of a constructive interference, i.e., you’re doing something wrong or you need some coaching or you need to be monitored.  Certain times that may be appropriate.  But sometimes the manager or the supervisor is so micromanaging your work or so involved in your work in a way that it almost becomes harassing and its ongoing, it’s constant—it happens all the time and that may amount to harassment.  Another example could be micromanaging (getting too involved), or taking away work from you—if for instance, in a case we dealt with, where the employee who was a managerial employee whose attendance was required in certain meetings but she was completely ignored.  She was not sent meeting invitations, she was ignored at the meetings and where the key decisions were made and what not and that could be a form of harassment too.  Those are the examples of harassment.  At the same time you want to keep in mind that constructive criticism of your work—if you have done something wrong and you are appropriately reprimanded—that is not harassment.  That is management of that work and management of the employee.  Sometimes the line is a bit blurred. You want to look at all of the circumstances of what’s happening.  I don’t think that it is for a decision maker (for a judge for/an arbitrator)—it will be a very hard thing to figure out whether it was harassment or whether it was simply the management style of the supervisor or manager.

Let’s jump into the how do you fight workplace harassment?  If you’re experiencing workplace bullying or harassment: What do you do?  I’m going to talk about that.  I believe there are some 4 concrete steps that you want to take if you’re experiencing workplace harassment are: Step 1: is always—if you’re experiencing workplace harassment—you must seek help for yourself or your physical for your mental health you must seek help.  If you are concerned about your physical safety, to the extent that you need to call the police, you must take that step.  In terms of help—if you need to go see your family doctor, your therapist, your psychologist or psychiatrist you must do that.  There are two advantages of doing that.  A. Number one you’re getting treatment.  You want to feel better.  You want to look after your physical and mental health.  B. Second is that when you go see your doctor and therapist you’re reporting these incidents and they’re getting documented with that specialist / with that therapist.  Further down the line, if you are before an arbitrator or a judge in a court an investigation of those documents—those doctors’ records / those medical records—become part of your evidence.  They may support your case.  If you’re experiencing workplace harassment I think, it’s important to get that documented with your doctor and therapist if you need to seek help.  Do not feel shy or do not feel reluctant in going and seeking help. C.  One more thing you want to explore is—and many, many at least large employers in Ontario and Canada have what’s called, E.A.P. (Employee Assistance Programs) which are help lines, confidential third party help where you can call usually a 1-800 number and if you’re experiencing psychological, physical, mental harassment, workplace harassment and bullying you can contact them.  They have therapists available with whom you can share the information confidentially.  You can get help.  If that’s something that’s available at your workplace, you must take it, you must benefit from it and must take advantage of that.

Step 2:  Document, document , document. I cannot emphasize this point enough.  Why?  Because in majority of the cases, workplace bullying and harassment is verbal (it’s oral).  There are no e-mails or no memos, there are no letters that contain harassing, bullying language, sometimes they do but the majority of the cases all incidences are oral or verbal. If anyone either an investigator or a judge is reviewing this matter it all comes down to “he said /she said” and so you want to make sure that you document whatever you were experiencing contemporaneously—meaning that if it happened to you today you want to go home and document it in detail so that you have a record that you can bring to your investigation; that you can bring to your trial and provide to the decision maker.  The advantages are: (a) number one: you have you not have documented something which was done contemporaneously so there’s some evidence of that.  (b) Number two: when you document something on an ongoing basis it will have more details in it.  Whereas, if you try to document it six months down the line you may not remember the parties who were present; you may not remember exactly what was said; you may not remember what time it was said; what was the circumstances of that comment and whatnot.  Documenting on an ongoing basis, if you feel or you believe that you’re experiencing workplace harassment and bullying is essential.  You must do that to protect yourself. Some of the things that you want to keep in mind are: what, when, where, who – what happened; what was the issue; what was the conduct that you were complaining about; when did it happen; where did it happen; who were all present—whether any witnesses; you want to document that.  If there are any documents that can prove your issue directly or indirectly, you want to keep records of that.  For instance, if workplace harassment took place in a meeting and there were minutes of that meeting that were recorded, you want to get a copy of those minutes and put them in your record because that will at least; even if there are specific comments, harassing comments were not documented—at least it will support your allegation that you were attending so and so meeting and this was said.  There is some sort of indirect evidence that will help you later down the line.  Documenting what you’re experiencing and going through is a very crucial (very important) step that you must do.

Step 3. Review policies.  Often times, when you’re hired at the workplace—when you sign up (you sign the employment contract), you get handed an employee handbook of workplace policies.  They may include anti-harassment policies; antiviolence policies; human rights policies; employee code of conduct, all of these things may be there. You may have looked at them a few years ago and not recently, so you want to get a hold of all of these policies review them again to make sure you understand how your employer’s policies define workplace harassment – workplace bullying.  What kind of conduct is covered in that? Then you want to understand what the process is if you have a complaint because you need to follow that process when launching your complaint.  You want to review those policies just to be current.  In a situation where you work for an employer who doesn’t have any of those policies then that’s a problematic issue.  For an employer, it indicates that the employer has actually not turned its mind towards workplace harassment and antiviolence issues and so that may lead to problems for the employer in dealing with your complaint.  Review policies apprise yourself of how workplace harassment and bullying is defined.  What is the process of filing your complaint? 

Filing a complaint.  Now what and where do you file a complaint? You generally have three avenues of filing complaint.  (i) number one: you file a complaint with the employer; (ii) Number two you can file a complaint with the Ministry of Labor in Ontario; and (iii) number three you can actually go to a lawyer and commence a court action.  If it’s appropriate file a complaint (an application) with the Human Rights Tribunals if your matter is also covered under Human Rights Code. These three avenues are open to you. 

My recommendation is that: (1) the first step you want to do is file a complaint with the employer.  The employer may not be aware of what’s going on or the employer may not know the extent/the nature of harassment that you experience and so you must give employer an opportunity to investigate and to remedy the situation to the extent possible.   That’s an important step that I always recommend that you must do.  (2) Second step you don’t need to exhaust the step number one to the employer you can you to go to Ministry of Labor you can go to the Ministry of Labor directly but my recommendation is to go to employer first.  You can file a complaint with the Ministry of Labor.  The legislation has been strengthening more and more from the time that it was initially brought in 5 to 7 years ago. Ministry of Labor will either appoint its own inspector to come and investigate or will force the employer to hire an external investigator to conduct an investigation.  Either way, the Ministry of Labor will take your complaint and will take certain actions. Then your matter can be investigated; and (3) finally like I said you can go contact a lawyer and commence a court action; if that’s appropriate or file an application with human rights tribunal; if that’s appropriate.

OK I want to quickly talk about investigations so you can understand the concept of investigation.  When you file a complaint with the employer, generally speaking, there are two options that the employer has: (i) employer has either to conduct an internal investigation; or (ii) conduct an external investigation.  An employer will decide which one is appropriate based upon the nature of your complaint, based upon its circumstances.  Internal investigation is as the name implies done by somebody who is internal to the employer—internal to the organization.  Could be an H.R. person, could be a senior manager, could be a vice president, and could be any of those people who may be appropriate and who are qualified, who have competence to conduct an unbiased investigation.  Sometimes that internal investigation is not appropriate.  For instance if your complaint is about bullying and harassment against the Director of Human Resources, then anyone from human resources is not an appropriate person to conduct an investigation because of the potential conflict because of the potential bias.  There may be circumstances based upon the nature of your complaint, based upon who you have complained against that it is appropriate to conduct an external investigation and if you believe that your circumstances are such that employers should conduct an external investigation (hire third party) to conduct investigation, then, you must ask for it at least in writing.  If the employer chooses not to act upon it that’s their prerogative but it may cause harm to the employer for not taking care of the issues objectively.  Investigation is important.  A lot of senior lawyers conduct investigations. I do investigations for corporate clients—not my own client; but other lawyers clients because I don’t represent them. I go in as an investigator to conduct workplace investigation and then provide my unbiased findings and recommendations if asked for.

What is the conclusion? My recommendation on workplace bullying and harassment is always, always, always speak up! A lot of employees that we talk to they’re always concerned about fear of losing their job or reprisal at workplace that what if they stand up and make this complaint; what if they lose their job and what if they will face retaliation in other forms.  Reprisal is protected under the Occupation Health and Safety Act—just so you know. But more importantly what you want to understand is that if you don’t speak up, if you don’t stand up, if you don’t file a complaint, then the workplace bullying and harassment doesn’t stop.  It won’t stop against you; it won’t stop against other people and it will only get worse. Then the problem with that is not only that it gets worse but it has huge, huge negative impact on your life.  It impacts your relationships with your family; it impacts your relationship with your friends; it could cause significant damage to your mental health—all of these things accumulate.  They’re very toxic, they’re very negative and you may end up in a situation where if you don’t stand up you don’t speak up, the party who is causing harassment and bullying will continue and create a situation where you walk out of the job and resign not having taken care of your rights.  I think this lecture has given you some understanding of your basic rights and hopefully you will be able to handle the workplace harassment and bullying situation in your workplace better. This is a topic that is sort of growing.  There may be circumstances which are very specific and examples of workplace bullying and harassment that you want us to cover.  We’ll be happy to continue adding on this topic.  If you have any questions by all means please contact us and we will be happy to keep adding on to this topic.  Thanks for watching.