Although the concept of psychological and sexual harassment in the workplace has been around for quite some time, it still remains a hot topic. It has generated a lot of attention especially since the introduction of article 81.18 of the Act respecting labour standards which has provided a definition of psychological harassment by indicating its criteria.
This article sets 5 cumulative criteria in order to qualify a situation as psychological harassment. It states that “psychological harassment means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee. For greater certainty, psychological harassment includes such behaviour in the form of such verbal comments, actions or gestures of a sexual nature. A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment. The concept includes the sexual harassment as well.”
The physical place where the harassment behaviour might take place has often been the source of many questions such as, is it limited to the physical workspace, is it limited to the working hours, etc. Fortunately, case law has come to shed some light on these issues confirming that harassment can take place beyond the employer’s walls and past the working hours. It can therefore take place in an outing at a restaurant, during an employees’ retreat outside the city, etc. The intense reliability on technological equipment, the presence of social media in our lives, the increase in work from home practices and the use virtual communications, has created a new type or source of harassment which is cyberbullying. A special attention should be paid to it.
Work is no longer limited to a work unit having clear boundaries. These boundaries are more blurred than ever. This changes our perception of what constitutes incivility and intimidation in the actual workplace.
The law does not particularly define cyberbullying; however, it can be perceived as a behaviour that is threatening, humiliating or degrading which can be generated by emails, text messages, either on social media platforms, chat conversation of virtual meetings, or any other digital manner. It could also take several forms such as: disclosing personal information, propagating rumors, expressing comments that are offensive, indecent, denigrating or even encouraging a person to do so.
In order to determine whether cyberbullying is harassment in the workplace or not, we would need to determine whether the 5 criteria which are mentioned in article 81.18 of the Act respecting labour standards are present altogether. Consequently, any negative comments or inappropriate behaviour would not automatically constitute psychological harassment if one of these elements is missing. A negative comment could result from a personality conflict or may arise from the employer’s management right. Since the employer has an obligation to protect the physical and mental health and safety of the employee and to provide a work environment free from harassment, preventive measures need to be set in place. For example, an uncivil behaviour during a “chat” conversation in a virtual meeting should not be tolerated because this can be a slippery slope for harassment.
Negative comments or intimidating behavior is often easier to do when a person is behind a screen or if they remain anonymous. This is why the employer must have a very high level of alert and take preventive measures to stop these comments or behavior from its source. This is not an easy job, as usually this kind of behavior is very subtly and occurs in situations where the employer or its representatives are not necessarily present.
This is why it is very important to raise the employees’ awareness about this issue. The employer must come up with creative solutions adapted to his work environment. Unfortunately, most of the time, cases of cyberbullying are perceived with indifference by the employer who sees this as an “ordinary” act that could not affect the well-being of the employee or would not have consequences. Not paying attention to these situations that might appear to be “ordinary” could have serious repercussions on the employee and financial and organizational consequences on the employer in the event of a complaint.
Are the current policies prepared for cyberbullying? Maybe not. It would therefore be strongly recommended that the anti-harassment policy be revised to include cases of cyberbullying and to raise such information among employees so that they are aware of the zero tolerance of these situations as well as the ways to report such bullying.
Quebec law already contains several elements necessary to address this situation, including the Act respecting labour standards (art. 81.18), the Act respecting occupational health and safety (art. 51) and the Charter of Human Rights and Freedoms (art. 46 and art. 10). So, employers can use the legal tools currently available to them in order to protect their employees.