Workplace Bullying and Harassment – WorkSafeBC Requirements

Workplace Bullying and Harassment –

WorkSafeBC Requirements

Presented by Heather [email protected]

October 29, 2013

Bullying and Harassment – WorkSafeBC Requirements

This presentation is based on the materials provided in the WorkSafeBC publication “Toward a respectful workplace: A handbook on preventing and addressing workplace bullying and harassment”

Found at: http://www2.worksafebc.com/pdfs/Bullying/BK137.pdf

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http://www2.worksafebc.com/pdfs/Bullying/BK137.pdf

http://www2.worksafebc.com/pdfs/Bullying/BK137.pdf

Introduction

Workplace bullying and harassment is an occupational health and safety (OHS) issue and is of growing concern in the workplace.

Bullying and Harassment can take many forms, including verbal aggression, personal attacks and other intimidating or humiliating behaviours.

If workplace bullying and harassment is not addressed, it can lead to lost productivity, anxiety, and, occasionally, suicidal thoughts or actions.

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The Workers Compensation Act

The Act sets out the general duties of employers, workers and supervisors to protect the health and safety of workers.

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Legal Obligations

The legal obligations of employers, workers, and supervisors with regard to bullying and harassment are found under “general duties,” in sections 115 to 117 of the Workers Compensation Act

To review these sections go to http://www.bclaws.ca/EPLibraries/bclaws_new/document/LOC/freeside/--%20W%20--/Workers%20Compensation%20Act%20RSBC%201996%20c.%20492/00_Act/96492_03.xml#section115

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http://www.bclaws.ca/EPLibraries/bclaws_new/document/LOC/freeside/--%20W%20--/Workers%20Compensation%20Act%20RSBC%201996%20c.%20492/00_Act/96492_03.xml#section115



Mental Disorder Claims

Section 5.1 of the Act states:

1) Subject to subsection (2), a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation .

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However, a worker is entitled to compensation only if the mental disorder

• is a reaction to one or more traumatic events arising out of and in the course of employment, or

• it is predominately caused by a significant work-related stressor, including bullying or harassment or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment

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For compensation to be provided, the mental disorder must be diagnosed by a psychiatrist or psychologist as a mental or physical condition that is described in the most recent American Psychiatrist Association’s Diagnostic and Statistical Manual of Mental Disorders at the time of diagnosis.

Currently, the most recent Manual is the DSM V

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• A psychiatrist means a physician who is recognized by the College of Physicians and Surgeons of BC or another accredited body recognized by WorkSafeBC as being a specialist in psychiatry.

• A psychologist means a person who is a registered member of the College of Psychologists of British Columbia established under section 159(1) of the Health Professions Act or a person who is entitled to practice as a psychologist under the laws of another province.

• WorkSafeBC has the authority to require that a diagnosis made by a psychiatrist or psychologist is reviewed by a psychiatrist or psychologist appointed by the Board.

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A mental disorder is not covered by WorkSafeBC if the mental disorder is caused by a decision of the worker’s employer relating to the worker’s employment, including:

• a change in work or working conditions

• discipline

• termination of employment

• workload and deadlines

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• work evaluation

• performance management

• transfers, lay-offs, demotions, and reorganizations

However, if the employer does not act reasonably or does not exercise its managerial authority in a reasonable manner, the mental disorder claim could be covered.

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Mental Disorder Claims Procedure

• Both the employer and the worker must report the claim as they would any other type of claim.

• Once the claim is established, WorkSafeBC will assign it to a case manager, who will take a detailed history, obtain all relevant medical reports, and conduct or initiate any investigations required to establish the facts.

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• If the evidence supports the worker’s claim that he or she has been exposed to either a traumatic event or a significant work-related stressor, the case manager will refer that worker to a psychologist or psychiatrist, who will determine if the worker has a diagnosable mental disorder.

• If the claim is accepted, WorkSafeBC may provide benefits, such as wage-loss compensation and health care treatment.

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If a worker reports a work-related mental disorder and requires time off or treatment, the employer must:

• Report the mental disorder to WorkSafeBC within three business days of the worker first reporting it to the employer;

• or within three business days of when the employer became aware of it.

The employer can either submit an online Incident and Injury Report (Form 7) or complete and send the Employer’s Report of Injury or Occupational Disease to WorkSafeBC.

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If the worker claims that the mental disorder was caused by bullying and harassment, the employer should investigate the claim promptly.

The employer should keep good records of all investigations and actions associated with the claim.

If the worker is being subject to unacceptable behaviours, the employer should take steps to ensure that such behaviours are stopped and that there is a safe environment for the worker to return to work.

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If you have concerns about the claim, express those concerns to WorkSafeBC.

Remember that the alleged bullying and harassment behaviour should be the “predominant” cause for a claim to be accepted.

If the employer knows of other situations that could be contributing to the worker’s mental disorder (for example, family or health issues), the employer should notify WorkSafeBC of those situations.

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Denial of Mental Disorder Claim

WorkSafeBC could deny a claim filed under section 5.1 on one or more of the following grounds:

• There is no workplace harassment/bullying and no mental disorder;

• There is workplace harassment/bullying but no disabling mental disorder; or

• There is workplace harassment/bullying and there is a mental disorder BUT the harassment/bullying is NOT the PREDOMINANT CAUSE of the mental disorder.

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• There is no workplace harassment/bullying and no mental disorder - employer may initiate a “directed return to work process i.e., ongoing leave is denied and employee is asked to return to work.

• There is workplace harassment/bullying but no disabling mental disorder – employer has to consider approving an ongoing leave, pending the development of an appropriate return to work plan. Employer could be exposed to full wage loss.

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• There is workplace harassment/bullying and there is a mental disorder BUT the harassment/bullying is NOT the PREDOMINANT CAUSE of the mental disorder – employer will need to address the issue by approving an ongoing leave, counselling, etc.

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OHS Policies Relating to Bullying and Harassment

In 2013, WorkSafeBC issued OHS policies relating to workplace bullying and harassment.

These policies provide a consistent legal framework and identifies the steps WorkSafeBC considers reasonable for employers to take in order to meet their legal obligations to prevent and address workplace bullying and harassment.

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OHS Policies

OHS policies provide guidance on how workplace parties can meet their obligations to prevent and address bullying and harassment in the workplace:

• Employer duties - policy D3-115-2

• Worker duties - policy D3-116-1

• Supervisor duties - D3-117-2

Policies are not mandatory, however they guide WorkSafeBC’s prevention officers in their decision-making

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Bullying and Harassment

“bullying and harassment”:

a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but

b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

Bullying and harassment is not subjective and must be viewed from the perspective of a “reasonable person”.

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Who is a “person”

A “person” includes any individual, whether or not they are a workplace party.

A “person” could be the employer, supervisor, co-worker; or

A “person” could be a member of the public, a client, or anyone that the worker comes into contact with at the workplace.

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Bullying and Harassing Behaviours

Examples of bullying and harassing behaviours:

• verbal aggression or insults; calling someone derogatory names;

• vandalizing personal belongings;

• sabotaging someone’s work;

• spreading malicious gossip or rumours;

• engaging in harmful or offensive initiation practices or hazing;

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Bullying and Harassing Behaviours

• physical or verbal threats;

• making personal attacks, based on someone’s private life and/or personal traits;

• making aggressive or threatening gestures; and

• targeted social ostracism.

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Bullying and Harassment

Workplace bullying and harassment can be:

• directed towards a colleague;

• directed towards a subordinate;

• directed towards a manager or supervisor;

• between a worker and a non-worker, such as a client;

• between workers from different organizations, such as those at a worksite where employees from multiple organizations are working together; and

• by a group of people, or one individual, towards another person or group.

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What is Not Bullying and Harassment?

The reasonable exercise of managerial authority does not amount to bullying and harassment.

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Reasonable Management Action

Examples of reasonable management action might include decisions relating to the following:

• job duties or work to be performed;

• workloads and deadlines;

• layoffs, transfers, promotions, and reorganizations;

• work instructions, supervision, or feedback;

• work evaluation;

• performance management; and

• discipline, suspensions, or terminations.

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What is Not Bullying and Harassment

Examples of behaviours that may not be bullying and harassment, if undertaken in an appropriate manner, include:

• expressing differences of opinion;

• offering constructive feedback, guidance, or advice about work related behaviour and performance; and ‑

• making a legitimate complaint about someone’s conduct through established procedures.

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Negative Effects of Bullying and Harassment

Potential risk to the physical and mental health and safety of workers.

Can lead to lower productivity, physical illness and increased risk of injury.

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Duties of Employers

Under section 115 of the Act employers must:

a) ensure the health and safety of its workers and any other workers present at the workplace; and

b) provide workers with the information, instruction, training, and/or supervision necessary to ensure work is performed safely

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Duties of Employers

Regarding bullying and harassment, OHS policy D3-115-2 states that employers must:

• develop a policy statement to prevent and address workplace bullying and harassment;

• take steps to prevent or minimize bullying and harassment;

• develop and implement reporting procedures;

• develop and implement procedures for dealing with incidents and complaints;

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Duties of Employers

• inform workers about the policy statement and steps taken to prevent or minimize bullying and harassment;

• train supervisors and workers about recognizing, responding to, and reporting incidents and complaints of bullying and harassment; and

• annually review the policy statement and associated procedures.

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Duties of Workers

Under section 116 of the Act every worker must take reasonable steps to protect his or her own health and safety as well as the health and safety of others.

Regarding bullying and harassment, workers obligations include:

• not engaging in the bullying and harassment of others;

• reporting any bullying and harassing behaviours they experience or observe in the workplace; and

• applying and complying with the employer’s policies and procedures.

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Duties of Supervisors

Under section 117of the Act supervisors ensure the health and safety of all workers under their direct supervision (section 117 of the Act). This includes:

• not engaging in the bullying and harassment of others; and

• applying and complying with the employer’s policies and procedures on bullying and harassment

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Developing a Policy Statement

There must be a written policy statement. The policy statement must clearly state that workplace bullying and harassment is not acceptable and will not be tolerated.

The employer must make the workers aware of the policy statement.

The policy statement should include examples of unacceptable behaviours.

Should state what the consequences will be if anyone bullies and harasses another person in the workplace.

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Preventing /Minimizing Bullying and Harassment

Employers must take steps to prevent, where possible, or otherwise minimize, workplace bullying and harassment.

If an employer is aware of circumstances that present a risk of workplace bullying and harassment, the employer must act to prevent or minimize that risk.

Ignoring the circumstances and hoping that the situation will resolve on its own is NOT AN OPTION.

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Reporting Procedures

Employers must develop and implement procedures that enable workers to report incidents or complaints.

The reporting procedure should also address situations where:

• the party to receive the report is the alleged bully

• the bullying behaviour is from workers outside the organization or clients or customers

• The reporting procedures should also reference relevant documentary and physical evidence that can be used. For example, emails, notes, photos

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Reporting Procedures

What should be reported?

• the names of the parties involved

• any witnesses to the incident(s)

• the location, date, and time of the incident(s)

• details about the incident (behaviour and/or words used)

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Investigation Procedures

The employer should make it clear that complaints will be treated seriously and addressed promptly.

Ignoring a complaint or incident of bullying and harassment is a breach of an employer’s duties under the Workers Compensation Act.

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Investigation procedures should set out:

• how and when investigations will be conducted;

• the scope of the investigation;

• the roles and responsibilities of the parties involved in the investigation;

• who will conduct the investigation i.e., whether it will be conducted internally or externally; and

• what will happen after the investigation is completed

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Investigations should be :

• undertaken promptly;

• thorough;

• fair and impartial;

• sensitive to the interests of all parties; and

• focused on finding facts and evidence

The investigation SHOULD NOT BE a WITCH HUNT. DO NOT predetermine the outcome.

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After The Incident/Investigation

Allegations damage workplace relationships.

After a complaint is made employers should work to repair any damage that has been caused.

• Determine what is and what is not appropriate to share with the group;

• Have “check-in” meetings to provide an opportunity for workers to confidentially express concerns about any bullying and harassment that may have continued;

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After The Incident/Investigation

• Have team discussions to clarify mutual expectations for how everyone will work together respectfully;

• Offer assistance, whether it’s through an employee assistance program, counseling through extended health coverage, or another resource; and

• Consider if there’s a need for further training or awareness.

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Informing Workers

All workers must be informed of the workplace policy statement and steps that the employer is taking to prevent or minimize bullying and harassment.

Recommend having staff meetings to explain the bullying and harassment provisions and what this means.

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Training Supervisors and Workers

Employers must ensure all workers (including management) know their responsibilities. This means that employers must provide training on:

• how to recognize bullying and harassment;

• how to respond if someone experiences or witnesses bullying or harassment;

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Training Supervisors and Workers

• the procedures in place to deal with bullying and harassment

– who workers can go to for help and what help will be provided

– who the organization’s contacts are for reporting incidents

– who is responsible for following up on complaints and incidents

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Annual Review

Employers MUST review their workplace bullying and harassment policy ANNUALLY and clarify/amend the policy as necessary.

However, if you see a problem with the policy DO NOT WAIT FOR THE ANNUAL REVIEW to deal with it.

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Cyber-Bullying

Electronic communication has created a new forum for bullying and harassing behaviour. It can occur through email, text messaging, social networking and websites.

It can include sending derogatory or threatening messages to the target, or sharing personal and confidential messages or images.

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Cyber-Bullying

• How to address:

• establish a clear electronic communications policy for the workplace;

the same principles and standards that apply for day-to-day work should also apply to activities

conducted online or via electronic devices

• if cyber-bullying is an issue, consider blocking access to social networking sites from work computers; and

• encourage staff to give careful consideration to the personal information they post online, especially on social media sites.

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Effects on Workers

Everyone responds differently to bullying and harassment. Some reactions may include:

• impaired concentration or ability to make decisions, which could lead to safety hazards, such as a lack of attention when working with dangerous equipment;

• distress, anxiety, sleep disturbances, substance abuse, and/or suicidal thoughts or actions;

• physical illness;

• reduced work performance.

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Effects on Bystanders

Other employees who witness bullying and harassing behaviour may:

• be afraid to support/help for fear of being bullied themselves;

• feel angry or stressed about the workplace culture;

• consider leaving the organization; and

• feel pressured to participate in the bullying and harassing behaviour.

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Effects on the Workplace

These include:

• reduced efficiency and productivity due to poor staff morale;

• increased stress and tension between workers;

• high absenteeism rates;

• higher turnover, resulting in higher recruitment costs; and

• higher levels of client dissatisfaction.

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Workplace Roles and Responsibilities

• It is important for the employer to determine the following, at the outset, if it is to successfully comply with WorkSafeBC’s requirements with regard to maintaining a harassment free workplace.

• Who is responsible for drafting and updating the harassment policy? (Prevention)

• Who is responsible for organizing educational workshops for workers and supervisors in relation to harassment? (Education)

• Who is responsible for monitoring the workplace for signs of harassment? (Monitoring)

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Workplace Roles and Responsibilities

• Who is responsible for conducting or arranging for the conduct of, investigations? (Workplace Investigations)

• Who is responsible for determining and implementing the employer’s response to the harassment complaint, including discipline (Determining response)

• Who is responsible for communicating with WorkSafeBC with regard to claims? (WorkSafeBC claims)

• Who is responsible for overseeing the return to work? (Return to work)

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Violence

• If an incident meets the definitions of both violence and bullying and harassment — if, for example, it involves physical assaults or threats — then the OHS Regulation section 4.24–4.31 on Workplace Conduct and Violence in the Workplace applies, in addition to OHS policies on bullying and harassment.

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Violence

1) Violence between Coworkers

The Regulation states:

• “a person must not engage in any improper activity or behaviour at a workplace that might create or constitute a hazard to themselves or to any other person” (s4.25); and

• “Improper activity or behaviour must be reported and investigated” (s4.26).

This applies when bullying and harassment involves violence or threats of violence between co-workers.

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Violence

2) Violence by Customers/ Clients

If a worker is bullied and harassed by someone other than another worker, such as a customer or client, and it involves violence or threats of violence, then sections 4.27–4.30 of the Regulation apply.

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Violence

It is imperative that employers take action to eliminate or minimize the risk of workplace violence.

Workplace violence may also be a criminal matter.

If there is a violent incident in the workplace and it results in the injury or death of a worker, the employer must investigate the incident and report it to WorkSafeBC (see sections 172–177 of the Act).

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THANK YOU

These materials are necessarily of a general nature and do not take into consideration any specific matter, client or fact pattern.

Please direct inquiries or comments to:

Heather [email protected]

mailto:[email protected]

Documents

Workplace Bullying and Harassment – WorkSafeBC Requirements