Since the Act respecting labour standards (ALS) adopted by the government of Québec provides that any and all workers have to right to evolve within an environment devoid of psychological harassment, it is crucial that you understand the extent of your rights and of your employer’s obligations.
We shall, in the following paragraphs, explain how the ALS protects workers against different types of harassment, as well as how victims of psychological harassment can enforce their fundamental rights.
What is considered « harassment »?
« Harassment » is defined as any kind of behaviour or vocabulary likely to offend or humiliate a worker or to cause an injury or an illness (whether it be physical or psychological).
In other words, « harassment » consists in unwarranted actions or words aimed at demeaning or intimidating an individual in the workplace. It generally manifests as recurrent epithets or behaviours, but can also be inferred from a single event which is so serious that it impacts the worker in the long-term.
Harassment can occur :
- On company premises;
- while workers are travelling to or from work;
- while workers are attending a conference, a lecture, a training session, or a social event sponsored by the employer;
Les différents types de harcèlement au travail
There exists several categories of workplace harassment, including:
Psychological harassment
Psychological harassment encompasses all actions, behaviours, and words that violate a worker’s fundamental right to dignity or cause them harm.
According to the Act respecting labour standards, psychological harassment will be inferred from any kind of behaviour that regroups the following parameters:
- Oppressive, vexatious, and recurrent or serious;
- Hostile and unrequited;
- Violate the worker’s right to dignity or their physical or psychological integrity;
- Creates a toxic working environment.
Sexual harassment
Sexual harassment consists in any kind of inopportune, sexually-driven behaviour directed against a worker, which may (or not) entail some form of professional advantage or benefit (such as a raise or a promotion). In some instances, this type of behaviour is likely to create a toxic working environment.
Physical or verbal aggressions, fondling, forced proximity, sexually charged conversations or insinuations, and lewd or otherwise inappropriate gestures may all amount to sexual harassment in specific circumstances.
Cyber harassment
Cyber harassment consists in wilful, aggressive, and recurrent behaviours directed against a worker through the use of electronic means. Nowadays, it mostly manifests as vexatious or embarrassing comments posted on social media.
Intimidation
Intimidation (also known as « moral harassment ») is characterized by recurrent physical or psychological actions or behaviours (sometimes obvious, sometimes more subtle) aimed at humiliating an individual.
The rights of workers and the obligations of employers
The Act respecting labour standards guarantees to workers the right to evolve within an environment devoid of psychological harassment, and states that it is the duty of employers to make all reasonable efforts in order to prevent (and, whenever required, to put an end to) psychological harassment.
In order to provide its personnel with a workplace devoid of harassment, an employer must implement preventive and corrective measures aimed at eliminating all instances of harassment as soon as possible.
Preventing harassment in the workplace
As it has the obligation to implement reasonable measures in order to prevent harassment in the workplace, the employer will be held responsible for the actions and behaviours of its employees and of the third parties they might get in contact with (clients, visitors, suppliers, etc.)
Consequently, a complaint revolving around harassment in the workplace must be filed against the employer directly. When legal proceedings are also contemplated, they may be filed against the perpetrator.
According to the Act respecting labour standards, an anti-harassment policy (containing, among other things, the information listed below) must be implemented and disclosed to all members of personnel:
- The employer’s commitment to prevent (and put an end to) any and all actions and behaviours likely to represent harassment;
- Simple and effective notification channels that will inform the employer while ensuring the safety and privacy of the victim;
- Clear and practical steps to follow in the presence of psychological or sexual harassment.
Such a policy might also describe the sanctions any perpetrator is likely to face and implement a training program aimed at making harassment known and teaching victims how to report any inappropriate conduct.
In any event, the employer may want to appoint a representative in charge of managing complaints revolving around harassment in the workplace.
Eradicating harassment in the workplace
The employer has the obligation to put an end to all situations involving harassment in the workplace.
Should they fail to report inappropriate actions or behaviours to the employer or its representatives, the victim will have no other option than to file a civil suit against the perpetrator themselves.
Although the measures described in the company’s anti-harassment policy must be initiated as soon as a complaint is filed, it remains the worker’s responsibility to notify the employer accordingly – unless the process appears to lack objectivity or transparency…or the employer happens to be the perpetrator.
Should the employer fail to initiate the anti-harassment process or refuse to intervene, the worker may file a complaint with the CNESST.
Who benefits from the protection of the law?
Any worker, teleworker, unionized employee, or manager can file a complaint for psychological harassment under the AST.
The following categories of workers are, however, excluded from the protection provided by the AST when it comes to psychological harassment :
- Freelance workers;
- Workers who perform their duties outside of the province of Québec
- Members of the personnel hired by embassies and consulates located in the province of Québec;
- Members of the Armed Canadian Forces;
- Healthcare workers;
- Workers governed by the provisions of the Canada Labour Code;
How does the Act respecting labour standards work?
When it comes to psychological harassment, the AST :
- Forbids any employer from adopting (or ignoring) inappropriate behaviours;
- Guarantees that workers can evolve within an environment devoid of harassment;
- Orders employers to develop and implement an anti-harassment policy;
- Forces employers to address any and all instances of harassment as soon as they are made aware of them.
Whenever a complaint is filed under the AST in connection with harassment in the workplace, the employer is held liable regardless of the fact that it had nothing to do with the inappropriate behaviour.
What to do if you are facing psychological harassment.
You may react in a number of ways:
- Face the music and attempt to resolve the situation by yourself;
- Follow the procedure described in the company’s anti-harassment policy;
- Notify the employer directly;
- Consult a union representative;
- File a complaint against the perpetrator;
- Consult an attorney in order to obtain legal advice;
Should you decide to file a complaint, make sure you are represented by an attorney specialized in the handling of cases involving the CNESST and the Administrative labour tribunal.
The Accident Solution legal team will manage your case from beginning to end and file all the forms, claims, and proceedings required in the process.
What happens once a complaint has been filed with the CNESST?
Upon receipt of a complaint, the CNESST initiates a qualification process based on the following parameters:
- Is the applicant governed by the provisions of the Act respecting labour standards?
- Has the alleged psychological harassment endured for more than two (2) years?
- Does the alleged behaviour amount to psychological harassment?
Whenever it declares a complaint admissible, the CNESST suggests that the worker and their employer participate in a mediation process presided by an impartial third party.
Should (i) the worker or employer refuse to undergo mediation, or (ii) the parties fail to agree on a settlement, the CNESST shall entrust the management of the complaint to an investigator whose mission will be to collect statements of events from the worker, the employer, and their witnesses.
What happens next?
Once their enquiry is complete, the investigator may come to the conclusion that the overall situation requires that the CNESST represent the worker before the Administrative labour tribunal, free of charge.
Should the investigator conclude that the CNESST cannot intervene, the worker may petition the Administrative labour tribunal by themselves.
Conciliation
Conciliation differs from mediation in that attorneys representing the worker and the employer participate in the process – which also involves a conciliator (appointed by the Tribunal adminsitratif du travail) whose mission is to devise a settlement both parties will benefit from.
Should the parties fail to agree at the end of the conciliation process, a hearing shall be held before the Tribunal in order to determine whether or not (i) the alleged situation amounts to harassment in the workplace, and (ii) the employer fulfilled its legal obligations. As a ruling, the Tribunal may order the employer to pay a certain amount of money to the worker, to rectify the latter’s personal file, or to implement specific measures in order to remedy the situation.
You may also challenge the CNESST’s decision by filing a claim or an application for review. As they prove rather stressful, such proceedings should be entrusted to an experienced attorney who will know how to obtain all the benefits you are entitled to under the Law.
What you can do
We recommend you react as follows should you ever experience harassment in the workplac :
- Address the situation so the perpetrator does not believe they can continue harassing you;
- Discuss the matter with the perpetrator (keep the conversation short, simple and friendly);
- Rely on the anti-harassment policy and collect the evidence you need to file a complaint;
- Keep the employer up-to-date, making sure it honors all its obligations;
- Record any and all conversations (about you) that are aggressive or hostile in nature;
- Seek the moral support of your family and friends (who may help you vent the frustration the situation makes you feel);
- Try and find out if any of your colleagues are also dealing with harassment and (if so) write down their contact information;
Never assume that resigning is a valid option, as doing so will prevent you from enforcing the rights conferred upon you by the Act respecting labour standards;
As we fully understand that being subjected to harassment in the workplace is a painful ordeal, we, at Accident Solution, adapt our approach and services to your individual situation.
