Me Marie-Michelle Savard
A partner at Verreau Dufresne Avocats, Marie-Michelle Savard focuses her practice on labour law, representing businesses and individuals with rigour and a personalized approach. With litigation experience before several provincial and federal tribunals and courts, she stands out for her analytical mind, rooted in her scientific training, and her ability to find practical solutions to complex issues.
View profileBook an appointmentWorkplace harassment can take many forms: psychological, discriminatory or sexual. Harassment in the workplace can lead to complaints, an investigation and serious consequences. Our labour lawyers in Québec City and Lévis explain the legal framework that applies.
Definition and scope
This article presents the definition and legal framework that apply to workplace harassment under the Act respecting labour standards (the “Act”). Different rules may apply to federally regulated businesses or to businesses governed by a collective agreement.
Psychological, sexual and discriminatory harassment
The Act defines workplace harassment as vexatious behaviour. It takes the form of repeated conduct, words or actions that are hostile or unwanted, that affect the employee’s dignity or psychological or physical integrity, and that make the work environment harmful.
The Act also specifies that a single serious incident of such behaviour can constitute workplace harassment if it has a lasting harmful effect on the employee.
This definition covers psychological and sexual harassment in the workplace. It also covers “discriminatory” harassment, based on one of the grounds of discrimination listed in the Quebec Charter of Human Rights and Freedoms: race, colour, sex, pregnancy, sexual orientation, civil status, age (except as provided by law), religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Who is protected
Under the Act, the legal protection against workplace harassment applies to employees, senior managers, students and interns.
Self-employed workers who run their own business and employees of federal businesses cannot file a harassment complaint under the Act respecting labour standards.
Burden of proof: the criteria to prove
The employee must prove that all of the following criteria are met to establish workplace harassment.
Criterion 1: vexatious behaviour
Vexatious behaviour is behaviour that is offensive, abusive or humiliating for the employee. Any other reasonable person in the employee’s situation would consider the behaviour vexatious.
Criterion 2: repeated or serious behaviour
To be considered harassment, the vexatious behaviour, conduct, words or actions must occur repeatedly or add up over time. A single act that is serious enough can also constitute harassment.
Criterion 3: hostile or unwanted behaviour
The actions, conduct or words must be hostile or unwanted. Hostile means aggressive, threatening or unfavourable behaviour. Unwanted means behaviour that is not wanted or welcome.
Criterion 4: harm to dignity or integrity
The behaviour must affect the employee’s dignity or physical or psychological integrity. In other words, the harassment must have a negative effect on the person who experiences it.
Criterion 5: a harmful work environment
The harassment must cause the employee’s work environment to deteriorate. For example, the victim may withdraw or be isolated by co-workers, or may no longer be able to perform their duties properly.
Complaints and remedies for harassment
The Act respecting labour standards provides protection against workplace harassment. It gives every employee the right to a work environment free from harassment. It also requires the employer to prevent harassment and to put a stop to any harassment that is reported.
An employee who is a victim of workplace harassment can first complain to the employer and use the measures the employer has put in place. The employee can also go to the designated resource persons to report the harassment. If the employer cannot resolve the situation, if the investigation is not conducted properly, or if the employee is not satisfied with how the complaint was handled, the employee can file a formal complaint under the provisions of the Act. Where to file a workplace harassment complaint depends on the employee’s status.
A non-unionized employee covered by the Act must file the complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), while a unionized employee must file the complaint with their union.
The deadline for filing a complaint is two years after the last incident of harassment, unless a collective agreement sets a different deadline.
Employer obligations
Preventing harassment
The employer must take reasonable action to prevent harassment. The Act therefore requires the employer to adopt a policy on preventing workplace harassment and handling complaints.
The employer must make this policy available to the members of its organization, and it may designate one or more resource persons to handle and resolve harassment situations brought to their attention.
Workplace harassment investigations
Since the employer is required to provide employees with a work environment free from harassment, it must put a stop to any harassment brought to its attention.
To do so, it must gather the versions of the parties involved through an investigation, stop unacceptable behaviour, impose sanctions, and so on.
False accusations of workplace harassment
Frivolous complaint, abusive complaint, false complaint or untrue accusation: these all describe an employee who falsely claims to be a victim of workplace harassment. In this situation, the employee can be disciplined.
Before reporting harassment or filing a complaint, an employee must make sure the situation is really harassment, as opposed to a conflict with a co-worker, a difference of opinion with a supervisor or the employer’s exercise of its management rights.
The harassment prevention policy
The employer’s policy on preventing workplace harassment and handling complaints could include a section on the consequences of making false accusations. This section could set out the disciplinary measures that can be imposed for untrue accusations, depending on the seriousness of the misconduct.
However, even if the policy has no such section, the employer could justify disciplinary action, since the employee will have breached their duty of loyalty and their obligation to act in good faith by filing an unfounded harassment complaint.
An untrue accusation against a co-worker could also, in itself, constitute harassment if the criteria set out above are met.
Serious consequences
If the employer’s investigation concludes that there was a false accusation, the employee who made the untrue accusations can face disciplinary measures up to and including dismissal.
The courts have repeatedly recognized that making untrue statements is serious misconduct that can break the bond of trust with the employer.
The courts have noted that filing an unfounded complaint can justify the employer in imposing a severe sanction, up to and including dismissal, without applying the principle of progressive discipline.
In addition, the falsely accused employee could sue the complainant for defamation in the civil courts.
Contact us
We invite you to contact today the labour lawyers at Verreau Dufresne Avocats for advice on workplace harassment.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
