Bullying and other forms of harassment in the workplace can be extremely costly to employers. In addition to the potential for declining productivity levels due to victim illness and stress leaves, substantial liability can flow to the employer as a result of the harassment of one of its employees by another. While many employers may be cognizant of this fact, they may not be taking proper steps to reduce risk.

An employee being bullied in the workplace could bring a successful claim for constructive dismissal, if he or she established that the harassment made his or her continued work relationship untenable. If so, the employer could become liable for extensive reasonable notice damages depending upon a number of factors, including the age of the employee, his or her position within the company and the length of his or her service.

In addition, such an individual could bring a human rights claim if the offending behaviour is related to a prohibited ground of discrimination, such as sexual orientation or gender. Due to recent amendments to the Ontario Human Rights Code, the potential damages that could flow to a successful human rights complainant are significantly higher.

Finally, such an individual could sue for intentional or negligent infliction of mental distress. The latter claim may be difficult for a plaintiff to establish because, in most cases, the conduct complained of must have caused the victim to suffer physical or mental illness, but, if successful, he or she could potentially be entitled to significant damages.

Perhaps the most common situation of bullying, or perceived bullying, arises from a situation where there is a manager/subordinate relationship between the alleged aggressor and the victim. However, an employee can also be bullied by another co-worker and the law casts the net of liability broadly enough to hold an employer responsible in such a situation as well.

In the human rights context as well as in a civil action, an employer will be held liable for bullying and harassment by supervisors, managers and other employees if the employer knew or should have known that the behaviour was occurring and failed to take action. If a key employee or "directing mind" of the employer is carrying out the harassment, his or her actions are usually considered to be the actions of the employer itself.

What an employer chooses to do about bullying, both before it occurs and after, can greatly reduce the risk of a finding of liability and the payment of resulting damages. To reduce the risk of harassment in the workplace, it is key for an employer to introduce a comprehensive anti-harassment policy, bring it to the attention of employees regularly and enforce breaches consistently. In addition, regular workplace seminars with respect to recognizing and eliminating harassing behaviour, as well as workplace postings setting out the meaning of workplace bullying and its specific consequences, have held sway with both courts and human rights tribunals.

In terms of response, steps taken after the fact by the employer do not absolve it of liability necessarily, but could serve to substantially reduce the damages owing. Above all, an employer must take any bullying or other harassment complaints seriously and investigate and act upon them in accordance with the complaint mechanisms set out in the employer's anti-harassment policy. The victim should be made aware that the complaint is being thoroughly addressed and what actions are being taken in that regard.

Employers should seek legal advice with respect to preventive measures such as implementing anti-harassment policies and with respect to addressing specific instances of bullying and other harassment in the workplace.

Laura K. Scott

613-566-2859

lscott@perlaw.ca