With the arrival of December comes office parties. Recently, Quebec’s labor minister recalled that Christmas parties can create an environment conducive to harassment, sexual or otherwise. Unfortunately, harassment is not just limited to the holidays.
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Each of us generally has our own definition of harassment, as this definition contains certain subjective elements.
Harassment can take different forms: sexual in nature, discrimination or abuse of power.
In general, the various forms of harassment are summarized under the term bullying.
In addition, the law defines what constitutes bullying of employees.
This constitutes bullying:
- bullying behavior, which is expressed by repeated behaviors, words, actions or gestures that are hostile or unwelcome; Violation of dignity or psychological or physical integrity leading to a harmful work environment, the law states that a single serious conduct can constitute bullying harassment if it harms the employee and has a lasting harmful effect on him.
It should be noted that various legal regulations require that the working environment must be healthy and free from threats to health and physical and psychological safety, just as the working environment must be free from psychological harassment.
In recent years, it has even been established that the employer must take appropriate measures to prevent or stop bullying, even if it manifests itself in the context of telework.
In addition, work-related events may include company parties that an employer organizes for its employees at Christmas or other times.
In order to decide whether bullying, sexual harassment or other forms of harassment actually occur, the courts have established various guidelines which stipulate that a harassment complaint must be examined from a global perspective.
Since each of us has a different level of tolerance, it can easily happen that one person finds certain behaviors annoying while another is completely indifferent. We therefore have to decide whether we feel harassed or whether we are actually being harassed.
For this purpose, the criterion of a reasonable person who is in the same circumstances as the alleged harasser must be used. In this regard, the courts have already decided that proof of the intent or motivation of the perpetrator of the harassment is not necessary in order to conclude that harassment has occurred.
Can a person accused of harassment rely on consent?
In fact, consent is one of the criteria that courts can potentially take into account when deciding whether or not harassment has occurred.
However, the person who invokes this has a heavy burden to bear. In fact, it must prove both the circumstances of possible consent and its extent, not by a simple assertion, which would not be sufficient, but by a series of facts.
In this regard, there is no presumption in favor of the alleged harasser.
Can we consider harassment as an industrial accident compensated by the CNESST?
The answer to this question is yes. However, the person seeking compensation must provide evidence of a specific medical diagnosis resulting from the harassment.
We then speak of anxiety-depressive reactions or, more simply, depression.
The Law on Accidents at Work and Occupational Diseases provides for a very precise procedure that must be followed in such cases. We will come back to this later.
Further important changes to the law are imminent
A few days ago, Bill No. 42 was introduced in the National Assembly, which aims to prevent and combat bullying and sexual violence in the workplace.
If this bill is passed, we will significantly change the provisions of the law on preventing bullying or even sexual violence in the workplace, as well as the compensation mechanisms in such cases.
As soon as it is adopted, we will inform you about the main changes and their practical impact, especially in the workplace.
Me Bernard Cliche, ad.E., Beauvais Truchon Avocats