Since the adoption on June 1, 2004 of the provisions of the Labour Standards Act1 aimed at ensuring the right of employees to a workplace free from psychological harassment, what has transpired? What is the proportion of complaints or grievances that have been upheld? What indemnities have been awarded by adjudicators as damages when they have found that there was psychological harassment occurring in the workplace? Have courts and tribunals granted other remedies? Has the definition of the criteria for psychological harassment evolved more restrictively?
Duties of the employer: best practices
Experience gained over time has allowed employers and their counsel to better identify and implement best practices for fulfilling their duties regarding psychological harassment, i.e. the duty to take reasonable means to prevent it and the duty to put a stop to it. The majority case law is to the effect that a written policy on psychological harassment is a reasonable means for preventing it. There are however certain clauses that are essential for the effectiveness of such policies. The case law has also identified other means employers can use to fulfil their duty to prevent psychological harassment. As for how an employer should intervene upon becoming aware of a psychological harassment situation, there are steps to be taken before the filing of an official complaint as well as after an investigation has begun. And with respect to such investigations, certain practices must be followed in order to limit the risks of legal action.
Judicialization: the new tendencies
Finally, what innovations have occurred in respect of the judicialization stage of psychological harassment complaints? The procedure followed by the Commission des normes, de l’équité et de la santé et sécurité au travail (the “CNESST”)2 mandates that employers be provided with certain advice to ensure the optimal exercise of their rights from the outset of an inquiry conducted by it.
There are also certain tips to follow and reflexes to adopt during hearings before arbitration tribunals and the Administrative Labour Tribunal3 in psychological harassment matters, in order to circumscribe the debate and/or have the complaint or grievance dismissed at the earliest opportunity.