It is no surprise that throughout 2010, the protection from psychological harassment in the workplace remains a hot topic in the province of Quebec. Notably, as more case law emerges, there is increased understanding as to what exactly constitutes psychological harassment as well as what can be expected on the part of an employer.

In a recent case1, the Commission des relations du travail (hereinafter, the "CRT") clarified the way in which "psychological harassment" is interpreted as well as the duty of the employer to provide its employees with a workplace free from psychological harassment.

Interestingly, this case also revealed that, contrary to our often preconceived assumptions, a psychological harasser is not necessarily an individual with superior standing or a higher ranking position than the employee victim. Rather, this case attests to the fact that a harasser is not uncommonly an employee subordinate or equal to the victim with respect to job title and hierarchal position within the company.

In the case of Cheminées Sécurité, the complainant was hired by the respondent employer as the supervisor of production. His job entailed supervising 40 to 50 unionized employees who worked the evening shift. The union had previously filed a grievance accusing the supervisor of extensively monitoring the employees and denigrating them in public. The supervisor was dismissed for not being able to properly fulfill the requirements of his job. Following the termination of his employment, he became depressed and was hospitalized for one week.

The supervisor filed a complaint of psychological harassment caused by the employees under his supervision and authority as well as by certain members of senior management. He reported incidents of assault, verbal abuse, threats and intimidation, false accusations of racism, teasing, invitations to fight, throwing objects in his direction and many insults.

After analyzing each of the events, the CRT did not find that all of the conduct and actions of the employees under the complainant's authority constituted psychological harassment. According to the CRT, a reasonable person placed under similar circumstances to those faced by the complainant would simply not find all of the behaviour in dispute to be vexatious. However, the CRT did find that other actions and words of employees under the complainant's authority amounted to vexatious behaviour that caused him to feel humiliated and isolated in a clearly harmful work environment, the whole amounting to psychological harassment.

With respect to the complaint of psychological harassment by some members of the senior management, the CRT did not find vexatious behaviour. The CRT explained that the protection from psychological harassment from which the complainant benefited in no way deprived the employer from exercising its management rights, namely that to dismiss the complainant, providing that such dismissal was not exercised in an abusive, unreasonable or discriminatory way. On this point, the CRT did not find the employer to have abused its right in dismissing the complainant.

The evidence of this case led the CRT to conclude that the complainant was a victim of psychological harassment by the employees under his supervision. The question then arose as to whether the employer fulfilled its two-fold obligation, namely to take reasonable steps to prevent psychological harassment and to take reasonable steps to stop the harassment once its occurrence was brought to its attention.

The CRT found that the employer fulfilled its obligations and therefore rejected the complaint. In terms of prevention, the employer adopted a policy to deal with psychological harassment in the workplace. The employer also provided training to the employees on this policy and posted the policy on the company premises in highly visible locations. In terms of stopping the harassment, the employer acted diligently and intervened in order to bring the misconduct to an end each time that it was brought to its attention by the complainant. Thus, the employer took reasonable measures to prevent psychological harassment as well as to stop it.

This case is significant in that it reminds the legislator's primary intent with respect to the provisions addressing psychological harassment: to protect the workplace. The introductory text of section 123.15 of the Act respecting Labour Standards (hereinafter, the "Act") provides that the CRT may only order the employer to pay the victim employee an indemnity or punitive and moral damages only if two conditions are met:

  1. the employee was the victim of psychological harassment; and
  2. the employer failed to fulfill the obligations imposed on employers.

Thus, the possibility of reparation for the victim is not predicated on the obligation or fault of the harasser, but rather on whether these two conditions are fulfilled. If the employer can prove that it fulfilled its obligations, namely to prevent psychological harassment in the workplace and to bring it to an end once it is brought to its attention, then the employer can escape liability, even if it is found that the employee was indeed a victim of psychological harassment. Accordingly, there may be situations where a victim of psychological harassment will see his or her complaint rejected by virtue of the fact that the employer fulfilled his obligations.