The balance between employee safety and harassment
Question: Is harassment or bullying a legitimate ground for employees to refuse work for health and safety reasons? Can an employer face health and safety sanctions in a workplace with such behavior?
Answer: Bullying and harassment are occupational health and safety issues that pose a potential risk to the physical and mental health and safety of workers. Conduct that is considered bullying or harassment may involve a wide spectrum of behaviours and similarly may have a wide spectrum of consequences for the victim including, for example, impaired concentration or ability to make decisions, which could lead to safety hazards (such as a lack of attention when working with dangerous equipment).
Generally, occupational health and safety legislation across Canada includes provisions under which a worker may refuse work or perform specific duties when she has reason to believe the work conditions are unsafe. The question then becomes: how should employers and employees interpret this in light of workplace violence and harassment concerns? The answer will depend on the governing occupational health and safety legislation in the applicable jurisdiction. Typically, harassment has been insufficient to initiate a work refusal but workplace violence, in certain jurisdictions, may form the basis of a valid work refusal. For example, according to Ontario’s Occupational Health and Safety Guidelines, Workplace Violence and Harassment: Understanding the Law, a worker can refuse to work if she has reason to believe she may be endangered by workplace violence. However, work cannot be refused on the grounds of workplace harassment without that concern for violence. Fear for one’s personal health and safety is one of the most common reasons for an employee’s refusal to work. In making a case that an employee validly refused work, the employee must prove that she honestly and reasonably believed her health or well-being was endangered, that she communicated this belief to her employer, and that the danger was sufficiently serious to justify the refusal: see Toronto (City) v. C.U.P.E., Local 79. Where an employee’s objection is more a matter of repugnancy and unpleasantness, arbitrators are less likely to find a justifiable refusal to work. Therefore, whether an employee’s apprehension of violence, danger or harm is reasonable enough to justify refusal of work, will turn on the facts of that particular situation. The second part of the question outlined above queries whether an employer can face health and safety sanctions in a workplace with harassing or bullying behavior. Again, the answer will depend on the governing occupational health and safety legislation in the applicable jurisdiction. In Saskatchewan, for example, the legislation expressly sets out that employers have a duty to ensure, insofar as is reasonably practicable, that the employer’s workers are not exposed to harassment with respect to any matter or circumstance arising out of the workers’ employment. If an employer fails to fulfill that duty, the employers may face sanctions pursuant to the “offences and penalties” provisions of the legislation. If harassment does occur in a workplace, employers must demonstrate that the employer did everything it reasonably could to eliminate or prevent it, or to minimize its effects. The Supreme Court of Canada in its 1987 decision Robichaud v. Brennan pointed out that although employers may be liable for harassment whether they know of it or not, the penalties imposed will be less, or non-existent, for an employer that “responds quickly and effectively to a complaint … to remedy and prevent recurrence,. For more information see: • Toronto (City) v. C.U.P.E., Local 79, 2011 CarswellOnt 4807 (Ont. Arb.).
• Robichaud v. Brennan, 1987 CarswellNat 907 (S.C.C.).
