On Feb. 8, 2010, an Australian café, its owner, its manager, a waiter and a chef were convicted under Victoria’s Occupational Health and Safety Act for viciously bullying a 19-year-old worker both physically and emotionally to the point where she jumped off a building to her death. Jail sentences weren’t an option under the law. So the magistrate fined the manager, waiter and chef a total of $85,000 for failing to take reasonable care for the worker’s health and safety. And he fined the owner and the café $250,000 for failing to provide and maintain a safe working environment.
THE PROBLEM
Bullying is becoming an increasingly serious problem in the workplace. Some studies suggest that as many as 21% of all Canadian workers have been targeted by bullies at least once. Like his playground counterpart, the workplace bully relies mostly on verbal and psychological intimidation. Although bullying might appear harmless, it can poison a workplace and escalate to physical violence—either by the bullies themselves or by their victims as retaliation. The café case is a sad example of what can happen when a worker is bullied or harassed until she can’t take it anymore. It’s also a cautionary tale of what can happen to employers who don’t adequately protect workers from bullying as required by the OHS laws.
THE EXPLANATION
All employers in Canada have a duty to prevent and protect workers from workplace violence and harassment, including bullying:
Violence. In Fed, AB, BC, MB, NL, NS, ON, PE and SK, the OHS laws specifically say employers must take steps to address workplace violence. In the remaining jurisdictions, this duty is implied by the OHS law’s “general duty clause.”
Harassment. The OHS laws in only three jurisdictions—MB, ON and SK—specifically require employers to take steps to assess and minimize the risk of harassment in the workplace. The remaining 11 jurisdictions—Fed, AB, BC, NB, NL, NT, NS, NU, PE, QC and YT—don’t specifically address workplace harassment in their OHS laws. But as with workplace violence, the “general duty clause” in each of these jurisdiction’s OHS laws likely requires employers to protect their workers from workplace harassment.
Québec. Québec does impose a specific duty to address workplace harassment on employers but not in its OHS law; this duty is set out in its labour standards law. An act respecting labour standards requires employers to prevent “workplace psychological harassment,” defined as including unwanted conduct, verbal comments, actions or gestures that affect a worker’s “physical integrity.” This requirement applies to not only non-physical acts of harassment but also more extreme forms of harassment, such as physical violence.
Australian OHS law imposes similar duties on employers regarding workplace violence and harassment. But the café, its owner and workers did just about everything wrong. The prosecution documented a litany of outrageous acts perpetrated on the young worker mainly by the manager and waiter and to a lesser extent by the chef. She was insulted and ridiculed, teased about her looks, held down while fish sauce was poured over her, teased about a failed suicide attempt, had poison put in her bag and was taunted about being unable to kill herself. The café owner knew what was going on and not only permitted but may even have encouraged this conduct to some extent. And to make matters worse, the café didn’t have any policies to address workplace bullying and behaviour in general. (For more information on this case, go to www.theage.com.au/national/when-darkness-comes-20100208-nnfn.html.)
THE LESSON
Why should you care about an Australian case? Because what happened in that café can happen anywhere, including Canada. In fact, similar cases of workplace bullying have already impacted Canadian workplaces. The most notable example occurred in 1999, when an Ottawa transit worker fatally shot four co-workers before turning the gun on himself. The worker had been bullied and teased by his co-workers because he had a speech impediment and a facial tick.
You and your fellow officers and directors must ensure that our company doesn’t wait until a tragedy like the one in the café case before taking workplace bullying seriously. Remember: The magistrate in Australia couldn’t impose jail sentences on the café owner or any of the workers involved because the OHS laws in that country didn’t permit prison terms. But under Canadian OHS law, these individuals—particularly the café owner—may very well have faced jail time.
The specific workplace violence and harassment requirements vary from jurisdiction to jurisdiction but are very similar. So it’s critical that the company’s officers and directors ensure that the company:
> Identifies and assesses the risk of workplace bullying in the workplace;
> If a risk of bullying has been identified, develops policies to address and prevent it;
> Posts these policies in the workplace; and
> Trains workers on these policies.
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