Is Bullying (Psychological Harassment) a workplace OS&H issue?

A recent article noted that threats and intimidation by supervisors have risen during the current financial crisis. Whether or not this true, threats of violence or intimidation should never be tolerated. Many jurisdictions rely on a ‘general duty provision’ in their occupational safety and health regulation to require employers to assess risks and protect workers from harms that would include violence. Other jurisdictions (Federal government, BC, Alberta, Saskatchewan, Manitoba, PEI, Nova Scotia and most recently Ontario) have gone further and created specific provisions regarding violence. Part 4 of WorkSafeBC’s Occupational Health and Safety Regulation defines violence this way:

4.27 "violence" means the attempted or actual exercise by a person, other than a worker, of any physical force so as to cause injury to a worker, and includes any threatening statement or behaviour which gives a worker reasonable cause to believe that he or she is at risk of injury.

More recently, the trend has been towards more explicitly dealing with the issue of what is commonly termed ‘bullying’. Quebec and Saskatchewan lead the way in this area with specific provisions that addressed ‘psychological harassment’. Bill 168, occupational Health and Safety Amendment Act (Violence and Harassment in the workplace) 2009 was given third reading by the Ontario legislature last week. Definitions in these provisions vary but the following extract from the Ontario Bill 168 captures the main elements:

"workplace harassment" means engaging in a course of vexatious comment or conduct against a workers in a workplace that is know or ought reasonably to be known to be unwelcomed.

Quebec’s provision in its Labour Standards 81.18 is even more inclusive:

"psychological harassment" means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.

Saskatchewan’s definition is a little more complex:

(l) ‘harassment’ means any inappropriate conduct, comment, display,action or gesture by a person:
(i) that either:
(A) is based on race, creed, religion, colour, sex, sexual
orientation, marital status, family status, disability, physical
size or weight, age, nationality, ancestry or place of
origin; or
(B) subject to subsections (3) and (4), adversely affects
the worker’s psychological or physical well-being and that the
person knows or ought reasonably to know would cause a
worker to be humiliated or intimidated; and
(ii) that constitutes a threat to the health or safety of
the worker;

Note, these provision govern workplace safety and health; they do not speak to the issue of compensability of any psychological injury that may arise. By most definitions, "harassment" or "bullying" implies a series of actions or behaviours and not "an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker's employment", as may be required for a mental stress claim. (See Workers Compensation Act, section 5.1(1)(a).

Is an harassment provision more effective than the general duty clause? I don’t think there is a definitive researched, evidence-based answer to that questions. On the other hand, the issue of workplace bullying is real and increasing in profile as a workplace safety and health issue. Whether through specific regulation or active education, protecting workers from harassment should be a priority.