Bullying and Harassment in the Workplace in Nova Scotia
During the workday, every employee has a right to dignity and respect. They have a right to be safe from physical or mental harm. However, bullying and harassment at work is still a major issue for many employees. Employees may experience such unwelcome and distressing conduct from a boss, a colleague, or even a customer or client, and it can take many different forms.
Advice for employees
Unlike most jurisdictions in Canada, Nova Scotia does not yet have any specific legislation to outlaw bullying and psychological harassment in the workplace.
This means that legal options are not always fully clear for an employee who faces harassment and bullying at work in Nova Scotia. Harassment and bullying in the workplace are not in themselves prohibited grounds of discrimination under the Nova Scotia Human Rights Act. The Nova Scotia Occupational Health and Safety Act does not expressly cover psychological violence in the workplace.
However, there may still be ways for workplace law to address the situation.
“Bullying and harassment” is hard to define. It is usually understood to include such behaviour as: intimidation; racist or culturally offensive remarks; unwelcome sexual remarks; jokes that ridicule or offend a reasonable person; unwelcome physical contact; sharing offensive pictures or documents at work; staring, following, stalking; or anything else that belittles or embarrasses a reasonable employee.
In general, employees have the right to refuse unsafe work. Given the current state of the law in Nova Scotia, however, to refuse work due to psychological harm caused by bullying and harassment can be risky. If you are considering a work refusal as a response to bullying and harassment, you should first seek legal advice about what procedures to follow and the risk involved.
If the matter has been brought to the employer’s attention, and due to the employer’s inaction the workplace has become so unbearable that you are forced to quit, it is possible that you have a claim for ‘constructive dismissal’. This is especially true when the workplace harassment amounts to a “poisoned work environment”, which is when the workplace becomes intolerable for any reasonable person. In such a situation, you could be owed severance pay. Before making the decision to quit, however, be sure to consult with a lawyer to understand the implications of that decision.
If the problematic conduct is of a sexual or racist nature, or if it engages any other protected ground in the Human Rights Act, such as disability, there may indeed be formal recourse available under our human rights legislation.
If an employee is accused of bullying and harassing behaviour, they are entitled to a procedurally fair investigation into the matter. They should have the opportunity to understand the allegations against them and to fully respond. If such behaviour is proven, it is very likely grounds for serious disciplinary action.
Advice for employers
As a best practice, all employers should take proactive steps both to prevent bullying and harassment during the workday, and to respond to it if it occurs.
In this regard, employers should prepare and review a policy on workplace harassment at least once a year. Many employers already have an obligation to establish and implement a workplace violence prevention plan under the Violence in the Workplace Regulations to address physical violence at work.
Employers must seriously and fairly investigate all harassment complaints. After an investigation, a report of the investigation’s findings should be made. An experienced employment lawyer can assist with that process and ensure the rights and interests of everyone involved are protected.
Finally, the employer must promptly resolve the issue in whatever way it can. Note that if the employer relies on a report’s findings to terminate an employee and the employee takes legal action, the employer may have to prove the truth of the report’s contents in court. On the other hand, if the employer does not adequately resolve the issue, it may face legal action from the complainant in the form of a constructive dismissal claim, a human rights complaint, or some other proceeding.
Are you being bullied or harassed at work? Have you been accused of such conduct? Are you an employer concerned with preventing such behaviour in your workplace?
Contact us today to book a consultation with our employment lawyer, Daniel Wilband.
This blog is meant for informational purposes only and is not a replacement for legal advice.