WorkSafeBC’s Board of Directors approved new occupational health and safety policies which came into effect on November 1, 2013, establishing the duties of employers, supervisors and workers to prevent workplace bullying and harassment. The WorkSafeBC policies guide Board officers in their adjudication of claims by workers for compensation, and the inspection of workplaces to ensure compliance with safety obligations. The policy for employers sets out a number of specific requirements that employers must implement to prevent and address bullying and harassment in the workplace, and to ensure the safety and well-being of workers. The policies for workers and supervisors set out the obligations not to engage in conduct amounting to bullying or harassment, to report such conduct and to comply with the employer’s policies.
This article identifies the requirements of the new policy as it applies to employers, and discusses the steps to be taken by employers in BC to affect compliance with the policy.
Policy Requirements for BC’s Employers
The policy requires employers to do the following to address workplace bullying and harassment:
- develop a policy statement with respect to workplace bulling and harassment not being acceptable or tolerated;
- take steps to prevent where possible, or otherwise minimize, workplace bullying and harassment;
- develop and implement procedures for workers to report incidents or complaints of workplace bullying and harassment including how, when and to whom a worker should report incidents or complaints. This must include procedures for a worker to report if the employer, supervisor or person acting on behalf of the employer is the alleged bully and harasser;
- develop and implement procedures for how the employer will deal with incidents or complaints of workplace bullying and harassment, including investigations and the scope thereof, roles and responsibilities, follow-up measures, and record-keeping;
- inform workers of the policy statement in (1) and the measures taken in (2);
- train supervisors and workers to recognize the potential for bullying and harassment, respond to bullying and harassment, and be aware of procedures for reporting and dealing with incidents and complaints of bullying and harassment in (3) and (4) respectively;
- conduct annual reviews;
- not engage in bullying and harassment of workers and supervisors; and
- apply and comply with the employer’s policies and procedures on bullying and harassment.
The immediate requirements for employers are the creation of an anti-bullying and harassment policy statement, development of procedures around reporting and investigation of bullying and harassment-related complaints, and providing training regarding bullying and harassment.
Compliance with the policy is mandatory. In the case of a claim by a worker for compensation based on alleged bullying and harassment, any ensuing WorkSafeBC investigation would include a review of the measures taken by an employer to comply with the policy and ensure the health and safety of the worker. The findings of WorkSafeBC officers on the sufficiency of policies and practices put in place by the employer may result in orders made against the employer, and could in some cases lead to penalties under the Act where the employer has failed to comply with the Act and the policy.
The development of anti-bullying and harassment policies will involve some expense and administrative burden for employers. Adding to existing policies will help employers minimize such costs while ensuring compliance with the WorkSafe requirements. An assessment of existing workplace policies that relate to bullying and harassment should be the starting point for employers who want to ensure their current workplace policies and practices comply with the WorkSafe requirements.
For example, for most employers existing workplace policies concerning sexual harassment, discrimination and/or the creation of a safe and respectful workplace will form the basis for new policies and allow employers to develop and implement compliant policies and practices around bullying and harassment. Employers must take care to ensure that existing policies are changed when necessary to include non-sexual forms of bullying and/or harassment contemplated by the policy, including behaviours that could reasonably cause a worker to be humiliated or intimidated.
When developing anti-bullying and harassment policies and practices, employers should note that the definition of “bullying and harassment” in the policy includes inappropriate conduct or comment by a “person” towards a worker, whether or not that person is a member of the employer’s workplace. This broad definition contemplates persons within the employer’s direction and control, such as the employer themselves, supervisors, or co-workers, but also includes persons outside the employer’s direction and control, such as members of the public, clients, or anyone a worker comes into contact with in the course of performing his/her job at the workplace. Employers must ensure that policies include the possibility that such actions may originate with persons external to the workplace.
An important part of the employer’s bullying and harassment policies will be the procedures for reporting incidents or complaints about bullying or harassment, and the process for investigating, following-up on, and keeping record of such reports and investigations.
Employers’ policies with regard to reporting must be clear on the steps required of workers who decide to report such incidents, and include at least two scenarios for each worker: one utilizing the regular organizational reporting structure, and another permitting an alternate method where the alleged “bully” or “harasser” is the worker’s supervisor or the employer. The former is unlikely to present a serious problem, and a reporting may map easily over the existing organizational structure. However, alternate reporting methods in smaller workplaces will have to be creative in devising ways for workers to inform superiors, the employer, or another designated person in the workplace about incidents or complaints.
Policies related to the scope of investigations, roles and responsibilities of employers, supervisors, workers and others in the investigation process, responses and follow-up actions, and record-keeping will also need to be workplace-specific. Employers must take care to abide by all existing policies, employment contracts, and collective agreement terms when developing and implementing investigation policies. Records of investigations must be retained to evidence compliance with the policy in the same manner as records are kept of all other workplace accidents and injuries.
Informing workers of the employer’s bullying and harassment policies, and providing workers and supervisors with bullying and harassment-related training, is required under the policy, and employers should consider how best to include such material in their existing training practices.
Excerpted from an article by Michael Watt and Derek Frenette, who practice law at Alexander Holburn Beaudin + Lang LLP.
The full article was originally published by the Business Council of British Columbia, October 2013.