A proposed change to Alberta's Occupational Health and Safety (OHS) legislation aimed at preventing and punishing workplace harassment and bullying would create additional duties for Alberta workers and employers.

Alberta OHS law currently recognizes physical violence in the workplace, but not psychological harassment. In November 2016, Alberta New Democrat Party MLA for Calgary-Klein, Craig Coolahan, introduced Bill 208, the Occupational Health and Safety (Protection from Workplace Harassment) Amendment Act, 2016. If passed, Bill 208 would make workplace harassment, or an employer's unreasonable failure to prevent it, offences under the Occupational Health and Safety Act (OHS Act), and would give workers the option of having harassment complaints investigated by an OHS officer.

Bill 208 defines harassment as "any inappropriate conduct, comment, display, action or gesture by a person" that "constitutes a threat to the health and safety of the worker" and that either (A) is based on prohibited grounds (race, religion, gender, disability, etc.); or (B) "adversely affects the worker's psychological or physical well-being" and could reasonably "cause a worker to be humiliated or intimidated".

Definition (B) expressly excludes "any reasonable action" by an employer "relating to the management and direction of the employer's workers or the work site", apparently recognizing that management styles may legitimately include elements that, in other contexts, could constitute harassment. Discriminatory harassment (definition (A)) cannot be excused on this basis.

Under the proposed legislation, workers would be prohibited from harassing or "participating in the harassment of" other workers and employers would be responsible for ensuring that their workers are not exposed to employment-related harassment. Contravention of these responsibilities would trigger the penalty provisions in the OHS Act. Under these provisions, an OHS officer investigating a harassment complaint could have discretion to impose an administrative penalty of up to $10,000 for each day the harassment continues.

Employers would also be required to establish and administer a workplace harassment policy and investigate harassment complaints. A worker who is dissatisfied with the employer's investigation would have the option of filing a complaint with an OHS officer for investigation and mediation. The results of this investigation would be subject to administrative review and appeal to the courts.

Bill 208 received first reading on November 9, 2016, but the legislative Session ended without further progress.

Commentary

Alberta workers and employers would likely applaud the Legislature's recognition of workplace harassment as a legitimate concern deserving legal sanction. However, employers may dislike the prospect of becoming subject to OHS investigation of harassment complaints at the option of an aggrieved worker, which would increase uncertainty and compliance costs even for compliant employers. Conversely, workers may worry about the government's capacity to investigate complaints in a timely manner, given existing concerns that Alberta OHS officers are overstretched.

The availability of administrative penalties at the investigation stage also raises concerns about fairness and consistency, considering the nuanced facts commonly associated with harassment complaints and the complicated definition of "harassment" that has been proposed. The exception for "reasonable management action" in particular will likely require interpretation, as will the meaning of "participating" in harassment.