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WorkSafeBC’s Bullying and Harassment Policies: Is Your Workplace in Compliance?




by:
Maggie Campbell
Davis LLP - Vancouver Office

 
February 27, 2014

Previously published on February 26, 2014

On November 1, 2013, new WorkSafeBC policies came into force dealing with workplace bullying and harassment. All employers are now required to be compliant, as the three month “grace period” ended on February 1, 2014.

The policies define bullying and harassment and explain the scope of duties for employers and employees in preventing and addressing this conduct. The policies apply to all provincially regulated employers in British Columbia, regardless of the size of the workforce or nature of the business.

What is workplace bullying and harassment?

WorkSafeBC has provided a succinct definition of bullying and harassment:


“Bullying and harassment includes any inappropriate conduct or comment by a person towards a worker that the person knew or ought to have known would reasonably cause that worker to be humiliated or intimidated, but excludes any reasonable action taken by a manager or supervisor relating to the management and direction of workers or the place of employment.”


This definition is broad and open to a liberal interpretation, however the express exclusion for the exercise of managerial authority should give employers some comfort.

What are the duties of employers and employees under the new policies?

Employers have three basic obligations under the policies. They must:

  • Develop policies that prohibit bullying and harassment;
  • Develop reporting and investigative procedures; and
  • Educate their employees about their policy and their duties and obligations under it.

All employees have a duty to not engage in bullying and harassment, and must report this conduct if they experience or witness it in their workplace.

How will WorkSafeBC enforce the policies?

While all employers are now required to be in compliance, WorkSafeBC has indicated that they will not be engaging in an “enforcement blitz.” WorkSafeBC inspectors are now checking for compliance with the new policy as part of their routine inspections of workplaces. There would also be compliance inspections if there is an express complaint or a claim by an employee for benefits for gradual onset mental stress.

In addition, WorkSafeBC will initiate inspections if it becomes aware of bullying or harassment issues in a workplace, even if there is no complaint. For example, there were stories in the media recently about alleged harassment and bullying in the West Vancouver Police Department. WorkSafeBC has announced that it will investigate those allegations and also determine if the West Vancouver Police Department is in compliance with the new requirements. This action was taken by WorkSafeBC even though no complaint had been filed. The inspection was triggered by allegations that came to the attention of WorkSafeBC through the media.

WorkSafeBC has created a complaint process for workers who believe their employers have not met their obligations under the policies. If WorkSafeBC investigates and is satisfied that the employer has failed to meet its duties, orders and fines may be issued.

It is important to note that WorkSafeBC will not adjudicate or consider the merits of a bullying or harassment complaint. An employee who disagrees with the outcome of his or her employer’s investigation will have no recourse under WorkSafeBC’s system.

In extreme cases, workplace bullying and harassment could result in a worker filing a claim with WorkSafeBC for gradual onset mental stress. To be awarded benefits, however, workers must prove that the workplace stress has caused a psychiatric disorder, which must be diagnosed by a psychiatrist or psychologist. This is a very high threshold that few claims will be able to meet.

How can your workplace become compliant?

If you have not yet incorporated the new policies into your workplace, here are the steps you need to take:

1. Develop a policy that describes what bullying and harassment is and states that it will not be tolerated in the workplace.

2. Create a reporting procedure that details how complaints can be made and what information needs to be included.

3. Develop an investigative procedure. Procedures should allow for some flexibility so that you can appropriately tailor your response to the circumstances and severity of each case.

4. Educate your workforce about bullying and harassment, your policy, and their duties and responsibilities. Different kinds of training tools can be used, from in-person seminars to webinars and computer based learning modules.

WorkSafeBC has a variety of useful tools and resources, including templates for policies, in the bullying and harassment section of their website which you can access.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Maggie Campbell
Practice Area
 
Labor & Employment
 
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