Managing Bullying + Harassment Today

Transcription

1 Managing Bullying + Harassment Today RG Workplace Law Summit September 2017 J. Najeeb Hassan nhassan@ropergreyell.com James D. Kondopulos jkondopulos@ropergreyell.com

2 Managing Bullying + Harassment Today J. Najeeb Hassan James D. Kondopulos Outline What we will cover Flurry of WorkSafeBC discriminatory action complaints Social media Not-so-new weapon of choice Dealing with the anonymous Internet (Norwich orders) 2 Discriminatory Action Complaints Flavour of the Year for Employees Feeling Bullied 3

3 Employers Legal Obligations Employer must take all reasonable steps to ensure health and safety of its workers, including prevention of workplace bullying and harassment - Section 115(1)(a) of the Workers Compensation Act - Policy Item D Defining Bullying and Harassment Includes: Any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably should have known would cause that worker to be humiliated or intimidated Excludes: Any reasonable action taken by an employer or supervisor relating to the management and direction of workers or place of employment 5 Basis for Complaint Discriminatory action against a worker must not be taken or threatened for: 1. Exercising an occupational health and safety (OHS) right or duty under the OHS part of the Act or Regulation 2. Testifying or preparing to testify regarding an OHS matter 3. Giving information about OHS conditions to any person administering the Act 6

4 Intersection with Bullying and Harassment WorkSafeBC and WCAT have consistently accepted that an employee raising a bullying and harassment concern is carrying out an OHS duty under the Act Reverse onus the employer is obligated to rebut the worker s complaint Meeting reverse onus may be challenging from an evidentiary perspective a typical bullying and harassment complaint often involves a he said-she said situation 7 Legal Test Onus on the worker to prove: 1. He or she suffered the type of negative consequences set out in s. 150(2) of the Act 2. He or she engaged in the type of protected activities described in s. 151 of the Act 3. The presence of a causal connection between the negative employment consequence and the protected activity in question If a prima facie case is made out, the onus shifts to the employer to disprove the allegations levelled against it - Reason or reasons for taking action against worker not related to the fact the worker is exercising OHS rights 8 Bullying and Harassment and Social Media Prevention, Training and Enforcement 9

5 What is the Risk? You cannot ignore social media Platforms allow bullying and harassment to extend well beyond the confines of the traditional workplace (beyond the office or production floor and outside work hours) Work and personal life now blend together 10 Prevention Proper social media policy Define social media Purpose Prohibited conduct Legal obligations Discipline Compatibility with other workplace policies Grandfathering or washout period 11 Training and Enforcement Orientation and education What is prohibited and what is not Compatibility with other workplace policies Consistency in enforcement 12

6 Labour Relations Context: Case Study Employer may be limited in enforcing a bullying and harassment policy for inappropriate conduct stemming out of internal union affairs 13 Norwich Orders Dealing with the Anonymous Internet 14 Purpose Norwich orders compel an entity to produce identifier information in its possession or under its control 15

7 Legal Test Conditions which must be met in order to obtain a Norwich order: 1. Bona fide claim exists against the wrongdoer 2. Disclosure of identifier information will facilitate rectification of the wrong 3. Defendant must be the only practicable source of the information 4. No immunity from disclosure 5. Defendant was mixed up in the wrongdoing 6. Disclosure will not cause the defendant irreparable harm 7. Interests of justice favour disclosure 16 Cases Where Norwich Order Successfully Obtained Pierce v. Canjex Publishing Ltd., 2011 BCSC 1503 Gold Bullion v. Stockhouse Publishing Ltd., 2013 BCSC Practical Tips Before Seeking Norwich Order 1. Obtain the IP address 2. Contact the Internet service provider (ISP) 3. Contact the party managing the website in question (website controller) 18

8 The purpose of this presentation is to provide an overview of this area of the law. This does not by any means constitute a full analysis of the J. NAJEEB HASSAN nhassan@ropergeyell.com JAMES D. KONDOPULOS jkondopulos@ropergreyell.com Roper Greyell LLP Employment + Labour Lawyers Thurlow Street, Vancouver, BC V6E 0C5 T F ropergreyell.com law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed. Roper Greyell LLP 2017

9 J. Najeeb Hassan Najeeb is a partner* at Roper Greyell with a focus on labour, employment and human rights law in the workplace. Najeeb has extensive experience with certification and decertification of unions, grievance and interest arbitrations, collective bargaining, managing strikes and essential service disputes, unfair labour practice complaints and other matters arising under the Labour Relations Code. Najeeb also provides exceptional representation in disability management, worker s compensation, human rights and wrongful dismissal claims. Highly experienced with unionized and non-unionized employers, Najeeb has represented public, private and First Nations clients, in the highway maintenance, automotive, hospitality, gaming, retail, construction, mining, print, manufacturing and health sectors. Najeeb looks beyond immediate circumstances while offering integral strategic advice and legal consultation to teams. He addresses problems before they escalate, demonstrating a creative, proactive approach to the law and works collaboratively with clients if litigation becomes necessary. Najeeb believes in a practical, common sense approach to complex legal issues. He provides strategic planning and vigorous advocacy to prevent and resolve conflict in the workplace. Najeeb s legal career includes serving as vice-chair of the BC Labour Relations Board, where he developed wellrespected mediation and adjudication skills. Najeeb also has extensive knowledge of the health sector, having held several senior positions with the Health Employers Association of BC, providing hands-on labour relations advice. Outside of the law, Najeeb enjoys pushing himself to reach new heights when hiking the North Shore mountains (as well as Africa s tallest) and is the consummate teammate when playing beer league hockey. Education B.A, University of Western Ontario LL.B, University of Victoria Year of call Ontario, 1991 British Columbia, 1995 Membership/Affiliations Canadian Bar Association Canadian Association of Counsel to Employers (CACE) BC Human Resources Management Association *Law corporation

10 James D. Kondopulos James is a founding member and partner* at Roper Greyell where he practises in all areas of employment and labour law. Predominantly representing employers in situations of workplace conflict, James is known for providing practical, cost-effective and long-lasting solutions to difficult employment, labour and workplace human rights issues. Such issues include those related to wrongful or constructive dismissal actions, restrictive covenants, compensation disputes, disability and attendance management, and discipline and discharge in the unionized environment. He has represented employers and senior employees before all levels of court and a wide range of workplace-related administrative tribunals in British Columbia. James approach to all litigation, and employment litigation in particular, is based on care and compassion for his clients. He is dedicated to maintaining long-term relationships and will aggressively pursue the best interests of his clients. Using his skills as an articulate and dynamic speaker, James addresses complex issues in a way that is direct, nuanced and easy to understand. He has served two terms as the Chair of the Canadian Bar Association BC Branch (CBABC) Employment Law Section and as an Executive Member of the Canadian Bar Association (CBA) National Labour and Employment Law Section. He has been a guest speaker for organizations including the Chartered Professionals in Human Resources of British Columbia and Yukon (CPHR), the Continuing Legal Education Society of British Columbia (CLEBC) and Lancaster House, and in the Roper Greyell Workplace Law Education Series. James has written for CPHR s HRVoice and PeopleTalk magazines and, for many years, was the author and editor of Roper Greyell s monthly newsletters. He also sits on the editorial board of LexisNexis Canada Inc. s Labour Notes newsletter. James spends most of his time outside work with his wife and their three beautiful children. He also serves on the board of directors of the Make-A-Wish Foundation of British Columbia and Yukon. *Law corporation Education LL.B. and B.Comm. (Accounting) (With Honours), University of British Columbia Chartered Professional in Human Resources (CPHR) Year of call British Columbia, 2004 Membership/Affiliations Canadian Bar Association Canadian Bar Association National Employment and Labour Law Section Canadian Bar Association BC Branch Employment, Labour and Human Rights Law Sections Canadian Association of Counsel to Employers (CACE) The Advocates Society Hellenic Canadian Lawyers Association (HCLA) Member, Editorial Board, LexisNexis Canada Inc. s Labour Notes newsletter Member, Board of Directors, Make-A-Wish BC & Yukon Rankings/Listings Litigation Lawyer to Watch - Lexpert s Guide to the Leading US/Canada Cross-Border Litigation Lawyers in Canada (US Guide - Litigation), 2012 Leading Lawyer Under 40 - Winner of Lexpert s Rising Stars: Leading Lawyers Under 40 competition, 2013 Best Lawyers in Canada, Who s Who Legal, Labour, Employment and Benefits Lexpert-Ranked Lawyer,