In the FOCUS article “Workplace violence: a challenge for employers”, we observed that case law demonstrates that violence means more than just physical violence and includes threats, coercion and emotional abuse. Bullying is one such form of non-physical violence; and it is beginning to gain more attention as a serious workplace issue. Linked to the concept of harassment, bullying is different in that it may not involve discrimination on prohibited grounds, such as race or gender. In extreme cases, bullying of employees can have catastrophic consequences, such as in the case of the Ottawa-Carleton Regional Transit Commission (OC Transpo), where an employee who had been taunted and teased about his speech impediment lashed out by murdering four co-workers.
The OC Transpo incident highlights the fact that any effective anti-violence strategy must also target the bullying which can result in physical violence – whether by the victim or the perpetrator of the bullying. However, even if physical violence never occurs, when bullying reaches the point of being a pattern of conduct, it can create a toxic workplace and liability for the employer, just as in cases of harassment or physical violence.
According to one source in the U.S., bullying affects one in six workers and is more common than either racial or sexual harassment. In over 80 per cent of the cases, the bully is in a supervisory role vis-a-vis the victim.
Besides the obvious forms of bullying, such as verbal abuse, threats, taunting and intimidation, other examples of this type of conduct include
- spreading malicious rumours about the victim and making false allegations in company documents;
- undermining or hindering the victim’s work by, for example, giving the victim wrong information or withholding necessary information;
- constantly changing guidelines and expectations applicable to the victim;
- removing responsibilities from the victim and making the victim feel useless;
- blocking the victim’s applications for leave, training or promotion;
- assigning unreasonable duties to the victim;
- constantly and persistently criticizing the victim’s work.
It can be seen from these examples that it is not always easy to determine whether someone is being bullied or is merely being subjected to “strong management” or justifiable criticism. Many bullies are skillful at covering their tracks and ingratiating themselves with their superiors. In other cases, what appears to be bullying conduct may be more properly characterized as a persistent personality clash between two employees.
However, it is important to an organization’s health to root out bullying behavior, as the effect on employee morale can be costly. Victims of bullying are very often competent, dedicated employees who are valued by their colleagues. Rather than being weak and socially isolated, the typical victim is equally likely to be a cooperative individual with a non-confrontational personal style. Often, the victim may have thrived in the workplace for a period of years, before the arrival of a new supervisor changed everything.
DAMAGES FOR INFLICTION OF MENTAL SUFFERING OR NERVOUS SHOCK
What has been the law’s response to psychological abuse in the workplace? A number of recent cases suggest that bullying, if it reaches certain level of intensity, may amount to a separate actionable wrong for which the employer will be liable to the employee (see “Fairly, reasonably and decently”: Employers obliged to deal in good faith with dismissed employees, Supreme Court rules” on our Publications page). One such actionable wrong, or tort, is the intentional infliction of nervous shock. This was at issue in the recent Ontario Court of Appeal decision in Prinzo v. Baycrest Centre for Geriatric Care (July 9, 2002).
Iole Prinzo was a hairdresser with nearly 18 years of service with Baycrest when she was terminated. The trial judge described Prinzo as having been a “model employee” for most of her tenure, until the arrival of Donna Gates, her new supervisor. Gates was less positive in her assessment of Prinzo’s abilities, and the two had a poor relationship, with Prinzo accusing Gates of harassing her during periods of illness and assigning her too much work. Soon, Gates recommended to senior management that Prinzo’s position be eliminated.
Before this recommendation could be acted upon, Prinzo injured herself in a fall in the employer’s parking lot. After a few days, Prinzo’s physician, Dr. McNabb, advised Baycrest that she was medically unfit for any form of work. The day before Prinzo went off work, Baycrest sent her a letter advising her that she was to be laid off, but without providing the effective date.
Over the next few months, and despite Dr. McNabb’s recommendations, Gates contacted Prinzo repeatedly, asking that she return to work on modified duties. At trial, Dr. McNabb testified that he had been told by Baycrest’s occupational health nurse that Prinzo had to return to work “so that she could be let go”.
About a month after going off to work, Prinzo received a letter from Gates which misleadingly implied that Dr. McNabb had agreed that she was fit for modified work, and advising her to make arrangements to return to work. Upset by the letter, Prinzo phoned Gates and was told that, unless she returned to work immediately, her conduct would be treated as a “work refusal and we will address that”. A few weeks later, Prinzo’s lawyer wrote Baycrest a letter advising of the stress and anxiety the phone calls were causing Prinzo, and requesting that all further communications be directed to him. Despite this, the phone calls to Prinzo continued.
When Prinzo finally returned to work, Baycrest management met with her for two hours, denying her request that the meeting be attended by one of her colleagues. At the meeting, it was suggested to Prinzo that her conduct was harming Baycrest’s elderly residents. Prinzo’s employment was terminated a number of weeks later, and she commenced a wrongful dismissal action against the employer.
At trial, the judge characterized the actions of Baycrest’s representatives as “harassment [which was] so extreme and insensitive that they constituted a reckless and wanton disregard” for Prinzo’s health and, therefore, served as the basis for a separate cause of action. Prinzo was awarded $15,000 as aggravated damages for mental distress.
Baycrest appealed the award without success. The Ontarion Court of Appeal upheld the award of $15,000, but held that the damages were not aggravated damages, as they arose before Prinzo’s dismissal, and not as a result of it. However, the Court held that the requirements of an independent actionable tort had been met – the tort of intentional infliction of mental suffering.
After a review of the case law, the Court held that it was clear that the tort of intentional infliction of mental suffering did exist, and that its elements were
- flagrant or outrageous conduct
- that is calculated to produce harm, and
- that results in a visible and provable illness.
The Court also noted that the second component – that the conduct be calculated to produce harm – is met in cases where the consequences of the conduct are known to be substantially certain to follow. There is no requirement that the wrongdoer have the actual malicious purpose of causing harm.
While the requirement of “flagrant or outrageous conduct” may be difficult to meet, some observers have suggested that, just as social attitudes towards sexual harassment have changed, so too it is likely that bullying will be seen as increasingly unacceptable. It should also be noted that employers will likely be held vicariously liable for the intentional wrongs committed by their employees. (For more information on this aspect of the issue, see A risky enterprise: Liability of employers for the wrongful acts of their employees” on our Publications page.)
What happens if the person suffering the mental distress or nervous shock is shown to have been especially vulnerable? Observers have noted that it is unfair to penalize defendants in cases where the bullying would not have led to nervous shock in a “normal” individual. However, it has also been held that, when a wrongdoer is actually aware of the victim’s pre-existing state, it is no defence to state that the average person would not have suffered mental distress from the bullying. Rather, some courts have ruled that, in these cases, the defendant will be held liable because its actions carry a greater moral reprehensibility.
DAMAGES FOR NEGLIGENCE
In some cases in which an employee successfully claims damages for intentional infliction of mental distress, the same facts may well support a claim based on damages for the employer’s negligence in allowing the bullying to occur. The test that must be satisfied is that
- the employer owes the employee duty of care;
- the employer should have observed a particular standard of care to fulfill that duty;
- the employer did not meet the standard of care, thereby breaching its duty to the employee;
- damage to the employee resulted from the employer’s breach;
- the damage was not too remote a consequence of the breach of the duty.
It is clear that employers owe employees a duty to protect them from harm (see “Ontario Court of Appeal reverses verdict holding employer liable for road accident caused by employee” on our Publications page.) When bullying is severe enough to constitute a tort, it may well be that the elements of the test for negligence will be met as well.
CONSTRUCTIVE DISMISSAL: BULLYING “A REPUDIATION OF THE ENTIRE EMPLOYMENT RELATIONSHIP”
A bullied employee may not have to wait until he or she develops a visible or provable illness or similar damages before obtaining a legal remedy. A number of cases demonstrate that, in appropriate circumstances, the employee is entitled to claim damages for constructive dismissal. Some Canadian courts have upheld constructive dismissal actions based on bullying behaviour on the theory that bullying represents a breach of the implied contractual term that the employer will treat the employee with civility, respect and dignity. This is because, in constructive dismissal cases, the issue is often whether a fundamental term of the employment contract has been breached by the employer, allowing an employee to consider that he or she has effectively been dismissed.
In Shah v. Xerox Canada Ltd. (March 20, 2000), the Ontario Court of Appeal rejected the employer’s argument that it is necessary to point to a breach of a specific fundamental term of the employment contract to sustain a claim of constructive dismissal. The search for a breached term is necessary in some cases, the Court agreed, such as when an employee’s position has been altered due to restructuring. However, that is not the case when a pattern of bullying has been established:
“In some cases, … the employer’s conduct amounts not just to a change in a specific term of the employment contract but to repudiation of the entire employment relationship… Xerox’s treatment of Shah between November, 1995 and May, 1996 demonstrated that it no longer intended to be bound by the employment contract, and that it had, therefore, constructively dismissed Shah.”
The Court went on to hold that the trial judge’s holding of constructive dismissal was reasonably supported by the evidence, which included following finding of fact:
- Shah had received positive performance reviews for 14 years before working under a new manager.
- The concerns raised by the new manager in Shah’s performance reviews were unsubstantiated and based on misunderstandings and unverified reports.
- Warning letters received by Shah were unjustified.
- The letter placing Shah on probation was also unwarranted, and provided few details and no opportunity to respond to criticisms made against him.
It has been remarked that, by freeing the courts from the need to locate a specific contractual term has been breached, and by equating unfair treatment with the repudiation of an employment contract, the Shah case has made it easier for victimized employees to bring constructive dismissal actions. Moreover, if it can be demonstrated that an employee has been subjected to unfair treatment and bullying, this may serve to negate what would otherwise be cause for dismissal.
This was the result in Paitich v. Clarke Institute of Psychiatry (June 13, 1990), a decision in which the Ontario Court of Appeal upheld a finding of constructive dismissal in the case of an employee dismissed for cause for writing a series of insubordinate memos to management. The trial judge had found that, although the contents of the memos would have constituted cause for dismissal in ordinary circumstances, the bullying to which them employee had been subjected in the period leading up to his writing the memos, and the failure of management to assist him in his difficulties with his supervisor, constituted constructive dismissal. The Court of Appeal concluded that it would be “unjust in the peculiar circumstances of this case” to permit the employer to rely on the employee’s conduct to constitute just cause for dismissal.
In Our View
In this article, we have emphasized the possible legal consequences of bullying in the context of the common law. Statute law, in the form of health and safety legislation, may also have a role to play when bullying is unrelated to prohibited grounds of discrimination. (Cases of alleged bullying involving racial or sexual harassment are likely to be referred by health and safety adjudicators to human rights tribunals.) However, the law in Ontario is unclear in this regard, and it remains to be seen whether the type of psychological bullying described in this article would be considered a workplace hazard within the meaning of the Occupational Health and Safety Act. Collective agreements may also address the issue. If they do, it is likely that employees covered by them would be barred from pursuing tort remedies by the principle in Weber v. Ontario Hydro that, when a dispute arises expressly or inferentially out of the collective agreement, the grievance process, not the courts, must be used to address the issue. (See Fine-tuning Weber: unionized employee can sue for malicious prosecution” on our Publications page.)