Psychological harassment

The employee’s collaboration is essential for the processing of his complaint. He will have to provide:

• a statement of the facts
• e-mails, correspondence or any relevant evidence related to the events
• a copy of his file with another agency such as the Commission de la santé et de la sécurité du travail, the Commission des droits de la personne et des droits de la jeunesse, where applicable
• a copy of his medical records
• a pay sheet to correctly identify his employer
• an organizational chart of the enterprise (may be hand-drawn) as background information for the case.

The statement must report objective facts and not emotions. It must also specify the employee’s expectations. Containing 3 to 5 pages, it must include:

• background information describing the type of enterprise, the work done and the performance required, the reorganization of the enterprise, the arrival of new managers, the commencement of the harassment, etc.
• a description of the behaviours, verbal comments or gestures in question, which mentions, in particular, the places and the dates when the events occurred.

The employee will also have to provide:

• his name, address and telephone number
• the name, address and telephone number of his employer
• the date when his employment began
• a copy of his contract of employment.

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Here are the different steps in the complaint processing.

Reception of the complaint

Can the complaint be accepted?

The Commission des normes du travail makes sure that the complaint is admissible. A representative of the Commission des normes du travail gets in touch with the employee and checks:

• that he is an employee within the meaning of the Act respecting labour standards
• that he is not already covered by a collective agreement
• that the enterprise for which he works is under provincial jurisdiction
• that he filed his complaint in the 90 days following the last incidence of psychological harassment
• that the alleged events appear to fall within the definition of psychological harassment within the meaning of the Act.

When the complaint cannot be accepted

If the Commission des normes du travail considers the complaint inadmissible, it writes to the employee to notify him that it is putting an end to the process and it explains why. The employee has the right to apply in writing to the Director General of Legal Affairs at the Commission for a review of this decision within 30 days of receiving it . The Director General of Legal Affairs in turn has 30 days after receiving the application for review to make his decision. If the Commission does not receive an application for review, it closes the file.

Mediation offer

If the complaint is admissible, it is entrusted to a mediator who contacts the employee and his employer to offer them his services.

With the help of the mediator, they endeavour together to find solutions that are satisfactory to both parties. They may call on the mediation service during every stage of the complaint process. This service, which is very efficient, makes it possible to settle close to 40% of the complaints without proceeding to an investigation.

A service geared to communication

In a climate that is conducive to discussions, the mediator helps the employee establish a dialogue with his employer or the presumed harassers. In the presence of one another, they can express their respective points of view, examine possible solutions and negotiate the terms of an agreement to which they freely consent.

An advantageous service

Mediation makes it possible to:

• actively participate in the search for satisfactory solutions
• retain control over the decisions to be made
• save time and money, while limiting worries
• arrive at an agreement freely consented to.

A professional service

The mediators with the Commission des normes du travail are subject to rules of ethics. Their role, their duties and their responsibilities, notably concerning impartiality, fairness and confidentiality, are specified in this pamphlet.

The mediator is a neutral person, who does not take sides with the employer or the employee. He must:

• explain to them the rules of mediation
• inform them of their rights and obligations
• provide them with his support throughout the initiative, without ever taking their place
• create a climate that is conducive to dialogue
• help the parties to explain the facts related to the conflict
• help them to find settlement avenues
• help them to clearly evaluate the situation and the proposed solutions
• make sure that both parties are satisfied with the draft agreement.

To be fully objective, the mediator cannot already have been active in other capacities in the case. He must act in complete confidentiality. No one may compel him to disclose the information entrusted to him during his mandate.

If an agreement is reached during mediation, the Commission des normes du travail puts an end to its intervention. In the opposite case, it entrusts the file to an investigator.

Investigation

The investigator from the Commission obtains the version of the complainant, the employer and witnesses, as well as that of the presumed harasser(s). He collects the information that he will need to analyze the situation. He also examines the facts and determines whether or not to follow up on the complaint. Finally, he checks the measures put in place by the organization to prevent psychological harassment and the steps taken to put a stop to it.

The employee can call on the mediation service at every stage of the complaint process.

Powers of the investigator

The investigator mandated by the Commission des normes du travail has the same powers as a member of a commission of inquiry. He can demand proof from the persons in question and summon them to appear before him. He can visit the premises to inspect any relevant element, require information or documents useful for his investigation, meet with witnesses or any other person whose testimony may be useful.

Right to review

If the Commission des normes du travail considers that a follow-up on the complaint is unwarranted, it informs the complainant thereof and explains the reasons for its decision. The complainant may then request in writing an administrative review of the decision within 30 days of receiving the notice.

Even if the Commission des normes du travail refuses to follow up on the complaint, the employee can ask to be heard by the Commission des relations du travail. He must then apply in writing to the Commission des normes du travail asking it to send his complaint to the Commission des relations du travail in the 30 days following the decision. In such a case, the Commission des normes du travail does not represent the employee before the Commission des relations du travail.

Sending of the complaint to the  Commission des relations du travail

Hearing

If the Commission des normes du travail considers that there is good reason to follow up on the complaint, it is sent to the Commission des relations du travail for a hearing before a commissioner. Only the commissioner can determine if the complainant was indeed the victim of psychological harassment within the meaning of the Act respecting labour standards.

Preparation

When the complaint is sent, the case is submitted to a lawyer at the Direction générale des affaires juridiques of the Commission des normes du travail. He will contact the complainant to offer to represent him free of charge and to invite him to prepare.

The complainant may wait from 6 to 8 months before obtaining a hearing date. Before the planned date of the hearing, the lawyer from the Commission des normes du travail can accompany the complainant to a conciliation session offered by the Commission des relations du travail. If an agreement is reached on that occasion, the hearing will no longer be necessary.

If the complainant prefers, he can be represented by the lawyer of his choice at his expense.

A few tips for the day of the hearing

• Dress appropriately: avoid attracting attention or offending others
• Make sure that you are present in the hearing room before the set time
• Avoid discussing your case outside the hearing room
• When testifying, speak clearly, in a loud voice and with assurance. Pronounce each word carefully
• Pay attention to each question asked
• Remain calm

Powers of the Commission des relations du travail

If the Commission des relations du travail concludes that the complainant was indeed the victim of psychological harassment and that the employer failed to meet his obligations, it can hand down any fair and reasonable decision. It can notably order the employer to:

• reinstate the employee in his job
• pay him an indemnity corresponding to the lost wages, if any
• take reasonable steps to put a stop to the harassment
• pay the employee punitive and moral damages and interest
• pay him an indemnity for the loss of employment, where applicable
• pay for the psychological support that the employee requires for a reasonable period as determined by the Commission
• modify the employee’s disciplinary file.
  

The employee may have filed a claim with the Commission de la santé et de la sécurité du travail or exercised a recourse to determine if the harassment of which he is the victim may be an employment-related injury. In such a case, or when the Commission des relations du travail deems that the psychological harassment likely resulted in an employment-related injury, it suspends its decision on the following points:

• the indemnity for lost wages
• punitive and moral damages and interest
• the payment of psychological support required by the employee.

This exception only applies for the period during which the employee is the victim of an employment-related injury. The provisions of the Act respecting labour standards do no encroach on the jurisdiction of the Commission de la santé et de la sécurité du travail. As a result, the indemnities received following various recourses cannot be combined.