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In this Bulletin:

• Summary of provisions regarding psychological harassment in the workplace
• Invitation to a seminar on Monday, April 26, 2004

As you know, following consultations held in the summer of 2002 and discussion in parliamentary committee, the Government of Quebec passed Bill 143 amending the Act respecting labour standards on December 19, 2002.

With certain exceptions, many of the amendments came into force on May 1, 2003. Now, in a second phase, the provisions relating to psychological harassment will be coming into force on June 1, 2004.

PSYCHOLOGICAL HARASSMENT: RIGHTS AND OBLIGATIONS

The new sections provide that all employees, regardless of their hierarchical level, have a right to a work environment free from psychological harassment and impose an obligation on employers to take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.

DEFINITION OF PSYCHOLOGICAL HARASSMENT

Psychological harassment is defined as "any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee's dignity or psychological or physical integrity and that results in a harmful work environment for the employee." It is also specified that "a single serious occurrence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment."

These provisions are deemed to be an integral part of every collective agreement and an employee covered by such an agreement must exercise the recourses provided for in the agreement, insofar as any such recourse is available.

RECOURSES

An employee who believes he/she has been the victim of psychological harassment may file a complaint in writing with the Commission des normes du travail (CNT) within 90 days of the last occurrence of the offending behaviour. A non-profit organization dedicated to the defence of employees' rights may also file a complaint on behalf of one or more employees who consent thereto in writing.

It is provided that on receipt of a complaint, the CNT will make an inquiry with due dispatch. If the CNT refuses to take action following a complaint, the employee may make a written request for the referral of the complaint to the Commission des relations du travail (CRT).

The CNT may, with the agreement of the parties, request the Minister to appoint a mediator. The CNT may assist and advise the employee during mediation. If no settlement is reached between the parties, the CNT, if it agrees to pursue the complaint, will refer the complaint to the CRT. The CNT may represent an employee before the CRT.

If the CRT considers that the employee has been a victim of psychological harassment and that the employer has failed to fulfil its obligations, it may render any decision it believes fair and reasonable, including:

• ordering the reinstatement of the employee;
• ordering the employer to pay the employee an indemnity equal to wages lost;
• ordering the employer to take reasonable action to put a stop to the harassment;
• ordering the employer to pay the employee punitive and moral damages;
• ordering the employer to pay the employee an indemnity for loss of employment;
• ordering the employer to pay for the psychological support needed by the employee for a reasonable period of time determined by the CRT;
• ordering the modification of the disciplinary record of the employee.

Note that paragraphs 2, 4 and 6 do not apply to a period during which the employee is suffering from an employment injury within the meaning of the Act respecting industrial accidents and occupational diseases that results from psychological harassment.

Where the CRT considers it probable that the harassment entailed an employment injury for the employee, it will reserve its decision with regard to paragraphs  2, 4 and 6.

UNIONIZED AND NON UNIONIZED ENTERPRISES ARE AFFECTED

The changes are likely to have significant consequences for managers in both unionized and non unionized enterprises. The Act respecting labour standards is a public policy statute that sets minimum standards, which means that the new provisions will have to be taken into account in connection with the administration and renewal of collective agreements and will also require you to review a great many documents, including your policies against harassment in the workplace, your assistance and support measures, your manuals, your employee guides and your employment and service contracts, to ensure that your working conditions comply with the Act and your workplace is free from psychological harassment.

WHERE YOU SHOULD START?

In order to optimize your efforts and make sure you are ready on June 1, 2004, we recommend the following course of action:

1. Make an inventory of the contracts, policies, manuals and current practices of your organization with respect to harassment in the workplace;
2. Identify the areas in which you will have to make changes and analyse the impact for the organization;
3. Establish new policies, if necessary, to ensure that you are in compliance with the new sections on psychological harassment in the workplace;
4. Train your managers in the application of the new provisions;
5. Inform your staff about any changes you make.

These legislative changes, which apply to all employees including senior managerial personnel, are major and will require particular attention. It is important to start taking the necessary action now to achieve the desired results. Since the work involved is extensive, we are organizing a seminar to advise you on the various steps to be followed. The seminar will be held on April 26, 2004 and we hope you will be able to attend.

You will receive an official invitation shortly.

The purpose of this document is to provide information as to developments in the law.  It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the Firm on the points of law discussed.

©OGILVY RENAULT 2004 - All Rights Reserved

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Manon M. Savard
Montréal
514.847.4520
msavard@ogilvyrenault.com
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Jean Houle
Québec
418.640.5036
jhoule@ogilvyrenault.com
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