Labour Standards

The notion of harassment has developed gradually in the labour relations field. An abundant jurisprudence, in particular on the themes of constructive dismissal and resignation, has recognized a form of protection in this field, both for employees benefiting from a collective agreement and for non-unionized employees.

Several forums have clarified the rights and obligations of the parties on this question. In the case of employees not covered by a collective agreement, courts of law and the commissioners of the Commission des relations du travail have had to examine the question, in particular by interpreting the notion of the right to dignity conferred by the Civil Code of Québec.

As for unionized employees, arbitrators on grievances have established for some time now various guidelines making it possible to identify what is meant by the concept of harassment in the workplace.

However, recourses are currently scattered and fragmentary, with processes and procedures that are adapted in varying degrees to the circumstances of each case.

Through these provisions, the objective of the legislator is first and foremost to make employers and employees aware of psychological harassment in the workplace and to permit actions upstream in order to avoid a deterioration of the work environment for the employee.

It was within this context that the new standards pertaining to psychological harassment integrated in the Act respecting Labour Standards (s. 81.18 to 81.20 ALS) were adopted. These standards are accompanied with a specific recourse (s. 123.6 to 123.16 ALS). They have been in effect since June 1, 2004.

This protection applies to all employees, including senior managerial personnel (s. 3.1 ALS). Every employer is responsible for the obligations related to this protection.

These standards clarify the employer’s obligations that already exist under the provisions of the Civil Code of Québec and the Charter of Human Rights and Freedoms. These provisions establish the right to dignity, to respect and to the person’s integrity, while guaranteeing employees fair and sufficient conditions of employment and a healthy work environment.

The application of these labour standards should make it possible to standardize the various case law definitions established by specialized courts of law.

This section defines what psychological harassment is. The definition must be approached within the specific context of the employer-employee relationship. In other words, what could not be considered harassment under other circumstances, may be considered harassment owing to the legal subordination relationship between the parties.

Vexatious behaviour must take the form of conduct, comments, actions or gestures which, in the case of the first paragraph, must be repetitive in nature, i.e. continuity over time.

The vexatious nature is generally gauged from the standpoint of the person experiencing the situation and who is reporting it, without regard for the harasser’s intentions. In the majority of cases, the assessment will deal with the nature, intensity and recurrence of the objectionable gestures, as well as their impact on the victim.  The vexatious behaviour may be continuous in nature, demonstratable by the effect of the physical or psychological prejudices that link each of the gestures together¹.

These incidences of behaviour, comments, actions or gestures must be hostile or unwanted. Their consequence is to affect the dignity or psychological or physical integrity of the person against whom they are directed, and to create a harmful work environment for him. "Harmful" refers to an environment that is detrimental, bad or unhealthy.

The hostile gestures towards the employee are not necessarily flagrant. Indeed, it is not necessary that such a gesture be aggressive in nature in order for it to be considered hostile. For example, an employee could be the victim of comments, actions or gestures which, when taken on their own, may seem harmless or insignificant, but the accumulation or combination of them may be considered a harassment situation. In such a case, if the employee works alone most of the time, the hostile gestures will not necessarily be noticeable at first.

The term "unwanted" refers to all of the objectionable conduct. Indeed, the victim does not have to give verbal expression to his rejection of such behaviour; the essential element leading to the ascertainment of harassment is that the behaviour itself is unwanted. It must be possible for the facts in question to be objectively perceived as being unwanted².

The concept of human dignity means that a person feels respect and self-esteem. Human dignity is associated with physical or psychological integrity. It has nothing to do with the status or the position of a person in his work environment, but rather concerns the way in which a reasonable person feels in the face of a given situation. Human dignity is scorned when a person is marginalized, set aside and devalued³.

It should also be pointed out that a single serious incidence of such behaviour may constitute psychological harassment. The harmful effect of this serious incidence must be felt over time by the person in question. The effect on the dignity or psychological or physical integrity of the employee and the harmful effect cannot be dissociated, in the case both of an isolated incidence and repeated incidences.

In this definition, the legislator is not referring to specific situations or individuals.

Behaviour that constitutes sexual harassment, whether it is manifested physically or verbally, could be considered psychological harassment.

It is worthwhile recalling that the Québec Charter of Human Rights and Freedoms and the Civil Code of Québec have specific provisions on this subject.

Section 46 of the Charter stipulates that: "Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being."

As for Article 2087 of the Civil Code of Québec, it states that:

"The employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed, but also to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee."

Identification criteria

The identification of the harassment must be made according to an objective analysis process.

In this respect, the criterion of a "reasonable person" put in the circumstances described in a harassment complaint is an objective identification standard. The point of comparison for this "reasonable person" must be a standard of conduct that is accepted or tolerated by society. As a reference, a person with ordinary intelligence and judgment is chosen to see how this person would have reacted in a given context.

The relevant point of view is hence that of a person who is reasonable, objective and well informed of all the circumstances and finding himself in a situation similar to the one related by the employee. Would this person conclude that this was a harassment situation?

The  effect of the application of such standards must not be to deny the  normal exercise by the employer of the management of his human resources. It is important to distinguish the actions taken by the employer as part of the normal and legitimate exercise of his management right, even if they involve unpleasant consequences or events, from those taken in a manner that is arbitrary, abusive, discriminatory or outside the normal conditions of employment.

¹ Dhawan c. Commission des droits de la personne et des droits de la jeunesse 2000-06-26 D.T.E. 2000T-633 (C.A.) Confirmed D.T.E. 96T-285 (T.D.P.Q.)

² Habachi c. Commission des droits de la personne, [1999] R.J.Q. 2522 (C.A.)

³ Law v. Canada (Minister of Employment and Immigration), [1999] 1 R.C.S. 497