Date: Monday, July 16, 2012
Author: Daniel A. Lublin
Publication: The Globe & Mail
The question: I’m getting bullied by most of my co-workers, and when I’ve told my boss that I don’t appreciate it, he tells me I need to relax and be a good sport about it. To him, it’s just fun and games, but it’s been getting me down so much that I’ve got to the point that I hate going in to work. By Sunday night, I feel myself getting stressed out and dreading the next day. I’ve spoken to my boss three times now, and he hasn’t done anything about it and I think he just thinks I’m a “whiner.” If I go to HR, I’m worried it’ll probably just make things worse. I can’t afford to just quit, but if something doesn’t happen soon I’m going to end up on stress leave, anyway. I understand workplace bullying is considered illegal, but how do I prove it, and what can I realistically do about it?
The answer: Despite your concerns, you cannot be afraid to complain to the company or even to take legal action. You need to stand up for yourself, and you must do it immediately.
You should begin by documenting the instances of the behaviour that you feel is bullying in as much detail as possible. I often recommend that employees keep a journal detailing the dates, times and places of, and the specific statements, comments or conduct that constitutes the abusive behaviour. You should also clearly document your previous and future complaints to your boss and what his exact responses were. To prove these discussions even occurred, keep calendar invitations or anything else in writing that demonstrates there was a meeting. In some cases, an e-mail should be sent after the meeting confirming what was discussed.
Consider filing a complaint with HR
Many companies have policies addressing harassment and bullying, which include specific details on how to file a complaint and what will occur once it is filed. Read the policy carefully and follow it exactly. Once a complaint under a formal policy is filed, the company has a legal obligation to investigate your concerns and determine if you are being bullied or harassed. If so, it must take steps to stop it.
Even if your company does not have such a policy, it still has a legal obligation to investigate your concerns and attempt to remedy any inappropriate behaviour, but it can only do so if it is made aware of your situation. Therefore, if there is no policy on harassment, draft a memo to human resources or a senior officer of company summarizing what is occurring at work and requesting that the company intervene to prevent it. If they fail to act, it will form an additional basis for future legal action against the company.
In your complaint, you should also specifically point out that you have previously complained to your manager and that his response was to grin and bear it. This will serve to reinforce that you have attempted to remediate the situation without success, and it will also call attention to your manager’s failure to appropriately address an allegation of harassment, which can also lead to liability against the manager and the company.
Sick leave and disability insurance
If the situation is causing you stress and anxiety, you may have developed an illness that requires medical attention or justifies some time off from work in order to recover. It is important to speak with your doctor quickly. Your physician may even order you to stay away from work. If your company has some form of medical benefits plan in place – and most do – you should then explore applying for disability insurance based on your condition.
Human rights laws
If the reason you are being harassed or bullied is based on any of the protected human rights grounds in Canada, such as age, race, religion or disability, among other personal characteristics, then you are specifically protected under human rights laws, which means you can take legal action against the bullies for the harassment and the company for not taking action to prevent it.
Constructive dismissal lawsuits
In situations where the harassment and bullying are unrelated to any human rights grounds, you may also be able to take legal action in the courts for constructive dismissal and the infliction of mental distress. In these situations, you must show that the behaviour is intolerable and that you should not be expected to persevere in the workplace environment. If so, you can resign and demand that the company pay you compensation for lost wages as if it effectively terminated your employment, damages for mental distress and possibly punitive damages, or damages for negligence if the company, once made aware of the conduct, permitted it to continue.