We have heard a lot in recent days about harassment in the workplace with the case of the Governor General of Canada, Julie Payette. The concept of harassment is at first glance very broad and often leads to confusion. What is it exactly?
In Quebec, for several years now, the Act respecting labor standards has defined what psychological harassment is. This concept encompasses all forms of harassment, which can be sexual, discriminatory, racial or even stem from an abuse of authority.
In fact, in order to be a victim of psychological harassment, it is necessary to demonstrate the existence of the following four conditions:
1. The harasser must have acted vexatiously towards the victim, such as insulting him, threatening him, uttering hurtful words, etc. Of course, it can also be humiliating gestures or behavior.
A repetitive character
2. The repetition of behavior will generally be considered an important element of harassment. In other words, unless it is only one serious act, it will be necessary to demonstrate the repetition of several harassing elements.
The hostile and unwanted nature of the alleged acts
3. The behavior complained of must be hostile or even unwanted. Furthermore, in that regard, the acts complained of must be capable of being objectively perceived as unwanted, so that they must be real and not result from a simple perception of the facts.
An attack on dignity, psychological or physical integrity
4. Vexatious conduct must also harm the dignity or psychological or physical integrity of the employee, resulting in a harmful work environment for him.
In this regard, gestures, vexatious words or even a significant lack of respect towards another person can violate the right to dignity of that person.
As for the harmful work environment, it must be an environment that prevents an employee from fully and healthily achieving the skills and objectives related to his work.
We can therefore see that the demonstration of what constitutes psychological harassment depends very much on the facts of each case.
We must also take into account the work environment which can be fraught with stress and dissatisfaction. Reorganizations, economic difficulties or even business mergers can force an employer to review its management, causing upheavals that are sometimes significant for employees. These situations do not then constitute psychological harassment although they can have significant consequences for employees.
In fact, the employer has a large power to direct and control the activities of his workers and his company. However, this management power must be exercised in a reasonable manner and constitute the normal and non-abusive exercise of the right of management.
In addition, the employer has the obligation to take reasonable means to ensure the prevention of psychological harassment, and, when he becomes aware of it, to use the appropriate means to put an end to it. He must adopt a coherent policy aimed at preventing and putting an end to situations of harassment. This policy must also be known to employees and applied. It must also include a procedure for settling complaints and, where appropriate, the possibility of taking disciplinary or administrative measures against the perpetrators of psychological harassment.
An employee who is the victim of psychological harassment may avail himself of the recourse provided for in the Act respecting labor standards. After examining the complaint, the court may order the employer to take various measures to restore somehow the fairness resulting from the psychological harassment.
On the other hand, if a doctor diagnoses a psychological injury, for example, depression or post-traumatic stress resulting from the harassment, the employee can then file a claim with the CNESST and be compensated accordingly.
Me Bernard Cliche, lawyer emeritus. Morency, Law firm, SENCRL