Who is protected against psychological harassement under the Act respecting labour standards?
The protection against psychological harassment under the Act respecting labour standards (ALS) does not apply to all workers.
The following workers cannot file a complaint for psychological harassment under the ALS:
- self-employed workers (people who operate their own businesses)
- people who work in companies covered by federal laws. They include employees of the federal government, banks (but not credit unions), radio and television stations, interprovincial transport companies, ports and telecommunications companies. Labour standards for these workers are in the Canada Labour Code, which is a federal law.
You can visit the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST or labour standards and workplace health and safety board) for a more complete list.
Other workers in Quebec, including senior managers and unionized employees, benefit from the protection against psychological harassment in the ALS.
What is psychological harassment?
In everyday language, to "harass" someone means to constantly attack someone. So you might assume that if these attacks affect the person psychologically, it's "psychological harassment".
But it is more complex than that. The concept of psychological harassment was created and defined by the Act respecting Labour Standards (ALS). For the conduct to be psychological harassment, all the criteria in the ALS must be met.
For there to be psychological harassment, the behaviour must:
- be vexatious and repeated, or vexatious and serious
- be hostile or unwanted by the employee
- affect the dignity or physical or psychological integrity of the employee
- create a harmful work environment
Repeated or Serious Vexatious Behaviour
To be considered vexatious, the behaviour must be abusive, humiliating or offensive for the person experiencing it.
This is measured objectively, which means a reasonable person in the same situation would also find the behaviour bothersome.
A word of caution! Behaviour can be vexatious even if the person doing it doesn't mean it to be vexatious. Take the example of Luc, who really likes his colleague Kim. For a while now, he has been regularly making comments on her red hair, playing innocent tricks on her, asking for a "password" when she tries to go by and sending her jokes via email to tease her. Kim never laughs and has twice asked him to stop, but Luc thinks she is just shy and that she will eventually open up to him. Recently, Kim's colleagues have noticed that she avoids Luc and looks worried when she sees him. This could be a vexatious conduct, even if Luc has good intentions.
Repeated Behaviour or a Single Serious Incident
The behaviour or things said must occur repeatedly. It is not necessarily harassment just because a colleague is in a bad mood one day and says something mean.
However, it can also be a single serious gesture. For example, an employer who touches his employee's breast without her consent during a Christmas party is committing sexual harassment (which is a kind of psychological harassment).
Hostile or Unwanted Conduct
The behaviour or things said must be hostile, that is to say, aggressive, threatening or harmful, or being done by someone behaving like an enemy.
The behaviour or things said must be unwanted. A gesture can be unwanted even if the employee does not protest out loud.
Conduct Harming the Dignity or the Psychological or Physical Integrity of the Employee
For example, the employee feels belittled, devalued or denigrated. The employee may suffer permanent psychological or physical injuries.
A Harmful Work Environment
There is deterioration in the employee's work environment.
Who is affected by psychological harassment?
Many different people could be involved in a situation of psychological harassment. For example:
- work colleagues
- employers - employees
- clients - employees
- suppliers - employees
How does the Act respecting labour standards protect employees?
The Act respecting labour standards protects employees against psychological harassment in the following ways:
- It gives employees the right to a workplace where there is no psychological harassment.
- It obliges employers to prevent psychological harassment and resolve situations of psychological harassment brought to their attention.
The employer must take steps to prevent psychological harassment. For example, she can designate someone to deal with these problems, put into place a mutual respect policy and have an internal procedure to investigate complaints of psychological harassment.
Settling Problem Situations
The employer must do more than take preventive measures. She must also help resolve problems brought to her attention. For example, she can listen to her employees, put a stop to unacceptable behaviour or impose penalties for inappropriate behaviour.
The employer doesn't have to guarantee the complete absence of psychological harassment in her workplace, but she must take steps to prevent harassment and resolve problem situations.
Are employers responsible for psychological harassment in the workplace?
If an employee files a complaint under the Act respecting labour standards, it is the employer, and only the employer, who can be sued and possibly be held responsible for psychological harassment at work. This is true even if it is not the employer who is harassing the employee.
For example, Sam is being harassed at work by his colleague, Henri. If Sam makes a complaint, his boss, Elaine, might be investigated and sued.
Why? Because it is the employer who must take steps to prevent or resolve a situation of psychological harassment.
Of course, under other laws, an employee can go after the person doing the harassing directly. For example, the employee could take a lawsuit for damage to reputation or file a complaint with the police.
During my last evaluation, my employer told me I needed to improve my performance at work. I don't agree with him. Is this psychological harassment?
No. Your employer has the right to tell you what he expects from you and to evaluate your performance at work.
It is important not to confuse stressful situations in the workplace with psychological harassment.
The following are not psychological harassment:
- The employer's right to manage her staff. For example, Elizabeth's employer calls her into her office to tell Elizabeth that she needs to cook the sausages longer, because the restaurant's customers have complained.
- A work conflict. For example, Arthur does not like working with Sally because she does not accept his suggestions for improving the company's procedures.
- A normal behaviour that is misinterpreted by a sensitive person. For example, Martha works in a factory. Her colleagues whistle while working. Martha can't live with this whistling.
A word of caution! If the employer uses her managerial powers improperly, this could be psychological harassment. For example, Elizabeth's employer often yells at her in front of everyone, shouting that she is stupid because she does not know how to cook sausages. She jokes about Elizabeth with the restaurant's customers.
What can I do if I think I have been a victim of psychological harassment?
If you think you have been a victim of psychological harassment, you can:
- try to resolve the problem on your own
- consult the resource people in your company
- consult your union representative
- talk to your employer
- get legal advice from a legal professional
- file a complaint for psychological harassment
Filing a Complaint for Psychological Harassment
Unionized employees - check what your union contract says (e.g., file a grievance).
Government employees - contact the Commission de la fonction publique.
Other employees and managers - contact the CNESST within 90 days of the last incident of harassment.
What happens when a complaint is filed with the CNESST?
The CNESST decides whether it can handle the complaint. In legal terms, this is called the "admissibility" of the complaint.
The complaint is admissible if all these conditions are met:
- The person complaining is protected by the Act respecting Labour Standards.
- The complaint has been filed in the right place (unionized and government employees follow a different route).
- The last incident of psychological harassment happened within the last 90 days.
- The complaint is about psychological harassment.
If the complaint is admissible, the CNESST offers its mediation services to the employee and the employer. In mediation, an impartial person helps them find a solution to settle the situation. The employee or the employer can refuse to go to mediation.
If the employee or employer refuses to go to mediation or if they are unable to agree once they are in mediation, an inquiry is held. An investigator appointed by the CNESSTl analyses the complaint: he listens to everyone's version of events and informs the employer and the employee of their rights and obligations. The investigator might also come into the workplace to make his own observations or to talk to witnesses.
What happens at the end of the inquiry?
The investigator makes a recommendation to the CNESST on whether to take the case on behalf of the employee to the Tribunal administratif du travail (TAT or Administrative Labour Tribunal). The TAT is a kind of court that decides whether the employee was the victim of psychological harassment.
If the investigator recommends to the CNESST that it should act for the employee, the case will be processed by the TAT. The employee will get the services of a lawyer from the CNESST free of charge.
But it the investigator recommends that the CNESST should close the file, the employee will not have the support of the CNESST. However, he can decide to bring his complaint to the TAT on his own.
Note: An employee can request a review of an administrative decision that goes against him, for example, a decision that the complaint is not admissible or a decision by the CNESST not to represent him. To learn more about the review process and the deadlines, contact the CNESST.
What happens before the Administrative Labour Tribunal (TAT)?
If the employee and employer agree, a conciliator named by the TAT tries to settle the case to the satisfaction of the people involved. This is called "conciliation". Unlike the mediation offered by the CNESST, the employer and the employee are allowed to be accompanied by their lawyers - if they have one - during the conciliation process.
If the file is not settled in conciliation, the TAT holds a hearing to decide whether there was psychological harassment and whether the employer respected her obligations.
If the TAT decides that the employer did not take steps to prevent or resolve a situation of psychological harassment, here are some of the things it can order the employer to do:
- give the employee his job back
- pay money to the employee to compensate him or to cover medical treatment the employee needed because of the harassment
- as a punishment, pay money to the employee
- change the disciplinary record of the employee
- take steps to stop the harassment
I am not protected by the Act respecting labour standards. Can I still do something about psychological harassment?
It depends on your situation.
Other laws may protect you against psychological harassment. For example, the Canada Labour Code protects people who work in businesses covered by federal laws against sexual harassment (which is a form of psychological harassment).
There are also laws that protect against discriminatory harassment, which is harassment of a person because of race, sex, colour, religion, etc. For this type of harassment, self-employed workers can complain to the Commission des droits de la personne et des droits de la jeunesse. Workers in businesses covered by federal laws can complain to the Canadian Human Rights Commission. If the harassment destroys your reputation, you may be able to sue the person harassing you for damage to your reputation.
If it's a crime, you can file a complaint with the police.
Consult a legal professional to find out about your options.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.