By Dave Rebbitt
Harassment and bullying have long lived in the shadows as something that happens to other people (usually women). It has usually been the purview of human resources.
In recent years that has been changing across Canada. Many thought gender discrimination, bullying and sexual harassment were stamped out in the 1970s and 1980s. It took the #MeToo movement to show us that people and workplaces have not changed all that much.
Some wonder why we never heard much about this topic in the decades before the #MeToo movement. The answer is both simple and disturbing. It has become standard practice for complainants to be given money to walk away. That sum of money usually comes with a non-disclosure agreement, and so they are silenced by the employer.
It appears that behind a wall of non-disclosure agreements and blame the victim mindset, bullying and harassment have flourished unchecked.
The #MeToo movement has been around for over a decade, and we have seen some changes in attitudes and a recognition that bullying and harassment are epidemic in the modern workplace. That is a statement that does take some convincing, but the evidence surrounds us.
For those of us in health and safety, this has been served up as the greatest workplace hazard of our generation. New Brunswick is the latest province to introduce legislation identifying harassment and bullying is a health and safety – a workplace — hazard. The latest legislation is not as prescriptive as some but does require that a code of practice is put into place.
The trend really started in 2012 when WorkSafeBC made policy changes to recognize that harassment could lead to a compensable mental injury. Saskatchewan went a step further in 2013, making it a duty of the employer to prevent harassment.
Ontario updated their legislation in 2016 and Alberta in 2018. In some provinces, the employer was required to prevent bullying harassment and it became a workplace hazard.
Alberta, in particular, gave supervisors a new duty under the OHS act to “ensure that none of the workers under the supervisor’s supervision are subjected to or participate in harassment or violence at the work site.”
Heady stuff. Harassment and bullying is now illegal, a workplace hazard that must have specific procedures for dealing with reporting, investigations and prevention. Employers and supervisors who do not respond appropriately or make reasonable efforts to prevent bullying, harassment or workplace violence could be guilty of an offence.
Not the usual hazard
Harassment is often based on perspective and emotional reaction. That does not make it any less real. For years, based on the work of Peter Sandman, we have seen the fourth dimension of risk as the emotional response. Feelings and emotions matter.
We often see hazards as physical conditions, things that can be fixed through the application of physical controls. Bullying and harassment are a risk that hides in plain sight. It is a poison that can undermine everything the safety profession seeks to accomplish. It is a risk that requires a different approach that many are simply not equipped for.
Taking over from HR
Many safety people think that using the traditional reporting and investigation methodology will be fine with this new risk.
The problem with that is such reports do not trigger the necessary support or appropriate organizational action. HR has been doing a poor job of handling these cases for years. Without a more informed approach, safety professionals will not do much better.
When a person reports harassment, things like psychological first aid, worker safety, and confidentiality are important. Does the organization have a plan to ensure a worker is safe, that they will be treated appropriately? How will the information be kept confidential? How will the formal complaint be put together?
Most organizations cannot answer all those questions. How will you gather the information to investigate? Should an internal investigation be conducted, or should an external investigator be brought in? How is the complainant involved in selecting the investigator? What instructions will be provided to the investigator?
Things seem complicated, but not so complicated as when there is a union involved. They become yet another active stakeholder in the process. The involvement of the union must be defined.
The health and safety committee may also need to be involved in the investigation, or investigations since a single complaint can spawn multiple investigations.
If this does not sound quick, that is because it isn’t. A traditional reporting and investigative approach will not serve you, or the company, well. Even once the investigation is complete, the complainant can take issue with any part of it, including that the investigator was not properly qualified or experienced.
Human rights legislation has always forbidden discrimination. Discrimination and harassment are closely tied together. Human rights commissions take some pains to draw the line and make clear that harassment is different from discrimination, although it may relate to discrimination on protected grounds under the human rights legislation. Enforcing human rights is a lengthy process and well established.
We cannot say the same for the new environment around bullying and harassment. If this is a workplace hazard, then a worker can exercise their right to refuse work they believe is unsafe.
If you have work refusal, how will that be handled? How will the employer investigate the claim of a toxic workplace? Regulators even seem ill-equipped for these situations. How can you investigate feelings? How will you accommodate the complainant? How can an employer resolve the issue to make the workplace “safe?”
Of course, someone mistreated in the workplace and exercising their right to refuse is protected against discrimination or retaliatory action, whether the “hazard” is legitimate or not.
Workers have the right to refuse and the right to be protected from discrimination around this workplace hazard. That does not mean that such circumstances would not give rise to a human rights complaint.
What about findings?
Many focus on what happens if the investigation shows there was bullying or harassment. The organization must have a clear idea of how it would deal with bullies or harassers. The remedies can range from counseling, job transfer, demotion or even dismissal for cause.
The major problem is when an investigation shows no harassment. Based on my personal experience, very few investigations show there was no harassment or inappropriate behavior. People seldom complain for no reason.
A finding of no harassment does not mean things can simply go back to normal. Now you actually do have a toxic workplace. People do not feel comfortable and do not necessarily feel safe. Counseling would likely be required for more than just one person. A bullying or harassment complaint can traumatize a workplace.
Where there’s one
Some reading this will think that it is not a problem in their company. Some think of a particular person who has the excuse that that is just the “way they are.”
There are always signs of trouble in the organization, precursors. Bullies and harassers tend to be in a supervisory position, but not always. In North America, we like to promote people with ambition, driven to get results. Those are the people that tend to get promoted over others. Those are also the people that tend to be bullies or harassers. Leadership is a rare thing and we often mistake bullies for leaders because they get results. We often do not see the cost.
How can you tell that harassment may be a problem or that people may be bullied? The best indicator is a high turnover in a department or division. Transfer requests can also be an indicator. Victims take more sick days than other employees. Changes in performance are another indicator. Nothing kills a high performer more than harassment or bullying.
I said at the start that this is the greatest workplace hazard of our generation. Let’s look at a few numbers. In 2017-18 the Ontario Ministry of Labour tagged workplace violence and harassment as their number one workplace safety violation with 11,662 violations. Fall protection came second with 9,658.
In the first year after the Ontario legislative change, the Ministry of Labour saw complaints double, to 2,133 harassment complaints. Inspectors issued 2,164 orders. Harassment accounted for over five per cent of all 2017 lost time claims in Ontario.
Not convinced? Well, with a mental injury attributable to harassment, the costs can be significant. When a claim is made to workers compensation, the determination of whether harassment occurred is not as important as determining if there is an injury and if that injury resulted from work.
In Alberta, the average cost for a lost time claim in 2018 was $10,548. Most claims for mental or psychological injury result in lost time. A claim for a psychological injury as the result of bullying or harassment would easily be more than $50,000. That should get anyone’s attention.
Over a hundred years ago society decided debilitating workplace injuries were unacceptable. In 2019 that now includes psychological injuries resulting from bullying and harassment.
Dave Rebbitt is the president of Rarebit Consulting providing services across Western Canada. With almost 30 years in health and safety, Rebbitt has built numerous health, safety, and environment management systems along with some innovative processes and even developed specialized PPE. He is an experienced speaker and writer on a wide variety of topics. He also develops and instructs courses at the University of Alberta OHS program. He can be reached through www.rarebit.ca