Harassment & Bullying Lawyers for Calgary Employees

Bullying and harassment in the workplace are recurrent patterns of unpleasant behavior directed against a specific individual or group. Bullying can also happen in isolated, single events. The pattern of conduct is generally intended to intimidate, offend, humiliate, or intimidate.

It can include physical abuse or threat of abuse but it usually causes psychological rather than physical harm. Workplace harassment can involve sexual harassment and discrimination.

The most serious kinds of bullying and abuse are often small in comparison to direct forms. Face-to-face encounters, verbal and non-verbal communication, and written communication (including email, texts, social media platforms) all constitute harassment.

Bullying and harassing behaviours can be exhibited by anyone – managers, supervisors, co-workers, subordinates, or clients. In other words, if someone is part of your organization or interacts with people in it regularly, they could be a bully.

Bill 30 defines harassment as being inappropriate conduct, comment, display, action, or gesture by a person that constitutes a threat to the health or safety of the worker and that is either based on:

1. certain enumerated grounds (such as colour, gender, or place of origin); or which
2. adversely affects the worker’s psychological or physical well-being.

Further, in respect of (ii), the amendment adds a couple of other preconditions:

• The harasser must know or ought reasonably to know that their actions would cause a worker to be humiliated or intimidated; and
• The harasser’s actions must either be repeated or a single serious occurrence that has a lasting harmful effect on the worker.

Employer Responsibility

The amendment further provides that every employer must establish and administer a workplace harassment policy and that every employer has a responsibility to investigate workplace harassment complaints. It also includes a dispute resolution mechanism in the event the employee is unsatisfied with their employer’s process. The resolution mechanism includes filing a complaint with an officer as well as mediation.

If mediation is unsuccessful, and the officer finds an employee’s complaint to be substantiated, the officer also has the power to “order the employer to undertake corrective action”.

What if the employer doesn’t comply with Bill 30?

The question then becomes, what happens if an employer doesn’t comply with the amendment or an order of an officer? The answer is that the current enforcement provisions of the OH&S Act would apply: an employer could be ordered to pay an administrative penalty or be found guilty of an offence and fined accordingly.

In other words, Bill 30 provides employees with a dispute resolution mechanism in the event that they experience harassment in the workplace while existing provisions in the OH&S Act will help to ensure employers comply with it.

With that said, neither Bill 30 nor the current OH&S Act, provide the victim of harassment with compensation nor deal with a situation where the victim is unable, due to the harassment, to stay in the workplace.  It should therefore be remembered that Bill 30 if passed, is not a complete code to an employee’s rights. Instead, it merely provides employees with an additional remedy to those already in existence below.

An employee who has been harassed or bullied in the workplace often wants to bring a lawsuit against either their employer or a colleague for the tort of “harassment”. Unfortunately, whether harassment constitutes a valid tort is an open question in Alberta². Because the issue is unsettled, we do not know what an employee would have to prove to be successful.  With that said, as discussed below, employees still have several options available to them should they become the subject of this type of conduct.

How constructive dismissals works

An employer owes a duty to its employees to

1. treat them fairly, with civility, decency, and with respect and to
2. ensure that the work environment does not become hostile, embarrassing, or forbidding.

The first typically applies in respect of how a supervisor or manager treats their direct reports, while the second applies in respect of how colleagues treat each other.

An employer who fails to satisfy these duties, such that competent performance of that employee’s work becomes intolerable, exposes itself to the following possibility:

an employee quitting and arguing that they have been “constructively dismissed”.  This is likely the most common claim an employee will make upon being harassed in the workplace, particularly because the conduct that could amount to making the workplace intolerable isn’t closed nor defined.

The following are case examples of successful constructive dismissal claims based on a breach of the above two duties:

• Lloyd v Imperial Parking³, where the plaintiff’s supervisor continually shouted, swore, and threatened to terminate him;
• Stamos v Annuity Research & Marketing Service Ltd.⁴, where a colleague, among other things, made unjustified complaints about the plaintiff to their employer; kicked in the plaintiff’s office door during a disagreement; and made lude comments about women for all to hear; and
• Sweeting v. Mok⁵, where an employer had an outburst toward the plaintiff, in front of the plaintiff’s subordinate, which involved yelling, profanity, and insults.

Employee entitlement upon a constructive dismissal

If an employee’s constructive dismissal claim is successful, the question then becomes: what is that employee entitled to? The answer is that employment agreements include an implied term requiring employers to give employees common law reasonable notice of termination, regardless of whether the termination occurs expressly or constructively.⁶

Courts determine an employee’s common law reasonable notice period based on various factors such as age, length of service, and character of employment—with the rough high end being around 24 months for long service employees.

Of course, when an employer constructively dismisses an employee by making or allowing the work environment to become intolerable, the employer won’t be in a position to provide the employee with reasonable notice.⁷

Instead, the employer will be seen to have breached this implied term, such that they are liable for the damage that results. This damage is typically everything the employee would have earned had appropriate notice been given, otherwise known as “pay in lieu of reasonable notice” or “severance”.

For example, if an employee, taking into account all of their factors, would have been entitled to 6 months’ notice, then their claim for constructive dismissal would equal to what they would have earned over this period.

In addition to suing for constructive dismissal, employees have several other civil remedies available to them, depending on the facts of their case. Possible actions include but are not limited to damages for the manner of dismissal, intentional infliction of mental suffering, and battery. Each is described more fully below.tiff could collect from either of them.

Elements of the claim

In addition to constructive dismissal and the other civil claims that often go along with it, some employees may have a claim for bullying or harassment pursuant to Alberta Human Rights Act, RSA 2000 c A-25.5 (the AHRA). Specifically, section 7 of the AHRAstates that no employer shall discriminate against any person with regard to employment or any term or condition of employment because of race, religious beliefs, colour, gender, physical or mental disability, source of income, age, ancestry, place of origin, marital status, family status, or sexual orientation (Protected Grounds).

Courts have found employers to breach this section in cases of harassment, so long as that harassment was based on Protected Grounds. Specifically, harassment in the human rights context is defined as follows: “unwelcome conduct related to prohibited grounds of discrimination that detrimentally affects the work environment or leads to adverse job-related consequences…”¹⁰

For example, in Janzen v Platy Enterprises Ltd.¹¹two restaurant employees were subjected to both unwanted sexual remarks and sexual contact from one of the other employees, Tommy Grammas, the restaurant cook. Despite notifying their employer of his conduct, the employer was unsympathetic and did nothing about it. Thereafter, one of the employees quit while the employer terminated the other. Both subsequently brought a human rights complaint and were ultimately successful. Importantly, the Court concluded that (i) the conduct amounted to harassment based on the protected ground of gender notwithstanding that not every female worker was subjected to it; and that (ii) the employer was responsible for the actions of Tommy Grammas, its employee because he committed them during the “course of his employment”.

Damages if successful

If an employee’s human rights claim is successful, then they will be entitled to remedies for the breach. This can include:

• lost wages—often for the period of unemployment;
• damages for loss of dignity and self-respect, which are essentially damages for the breach and are not to compensate the employee for any monetary loss; and
• reinstatement. Though, this may be unworkable depending on the circumstances.

In other words, unlike damages for constructive dismissal, these remedies are intended to “make the employee whole”, creating a significant amount of liability for the employer. For example, in Cowling v Alberta¹², an age discrimination case, the tribunal awarded, among other things, lost wages for a period of 5 years, the amount of time the employee was unemployed due to the discriminatory conduct, less than 30% for certain contingencies.

If you are the subject of bullying or harassment (sexual or otherwise) you may be entitled to multiple remedies depending on your circumstances.

Booking a consultation with one of our lawyers will help you determine the options that are available to you as well as which option best suits your needs.