Can Workplace Bullying Be Cured With Legislation?

Ontario has introduced its Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace). This legislation will impose broad obligations on employers in that province with respect to workplace violence and harassment.

 

In brief, this legislation provides definitions for workplace “violence” and “harassment” and requires employers to implement related policies and programs and training, to conduct ongoing workplace assessments of the risk of violence, and to disclose information to workers about persons with a history of violent behaviour.

 

This legislation is in addition to Ontario’s regime of workplace regulation, including existing employment standards and human rights and occupational health and safety laws. The question many Ontario employers may be asking is, “Is more workplace regulation really necessary?”

 

On the one hand, statistics suggest that workplace bullying is prevalent. The Globe & Mail reported, recently, on studies showing that 80% of workers report “at least one incident of harassment in the course of their career”.

 

The same article stated that 30% of workers report “repeated instances of bullying at some point in their career” and 5% report that they are “being bullied in their current job”.  Those are some persuasive numbers, at least until you take into account that they seem to be reflective only of the employees’ own perception.

 

On the other hand, I find myself asking (as, I suspect, will many Ontario employers) whether more government regulation of the workplace is necessarily better than less.

 

I think it’s fair to say that employees, generally, are going to be expected to interact with other people at work. It’s also fair to presume that not all co-workers are going to get along.

 

And some of the treatment to which some people expose their co-workers is going to be perceived as offensive. Governments, and the legislation they produce, can’t (in my view) change this.

 

Governments have traditionally sought to control and regulate the employer-employee relationship. There is good reason for that because, undoubtedly, there is an imbalance of power there.

 

Is there a similarly compelling reason for government to regulate employee-employee relationships (or to impose the obligation for doing so on employers)?

 

In a way, the introduction of this Ontario legislation reminds me of my reaction when B.C.’s Personal Information Protection Act (also known as PIPA) was introduced a few years ago. PIPA is many, many pages in length and its various twists and turns in the name of protecting personal information are sufficiently complex that employment lawyers – forget about non-lawyers – may have difficulty discerning its impact in a given situation.

 

At the time, and many times since, I have wondered whether a single line might have been sufficient (perhaps something like “No one shall make any use of personal information which the owner of the information might be expected to view as unreasonable”). 

 

Assuming that the new Ontario legislation is necessary at all, perhaps it could have been boiled down to something like, “Employers shall take reasonable steps to anticipate, avoid, and address incidents of workplace harassment and violence”.

 

In any event, you can burden employers with sweeping obligations and establish a complaint structure for employees and empower a publicly-funded administrative body with the task of addressing those complaints (and allow for the inevitable requests for judicial review of those decisions). What you can’t do is legislate away the human aspect of the workplace equation.

 

People who are unhappy with their co-workers’ behaviour do, after all, have a self-help remedy at their disposal. They can find a better fit with another employer.