Canada: Increased Supervision And Psychological Harassment: How To Exercise The Right To Manage

Edited by Jennifer M. Fantini and Naomi E. Calla

Since the inclusion of a specific provision concerning psychological harassment in Quebec employment law, there has been a significant increase in litigation involving psychological harassment.

The Québec's Act Respecting Labour Standards¹ defines psychological harassment as:

This is an important factor to consider when addressing performance issues, as increased monitoring of an employee's work can be misconstrued by an employee as harassment.

A recent decision from Québec's Labour Relations Commission, Michaud v. Allstate du Canada², shows how corrective measures can be misinterpreted by an employee as harassment. The employee's job involved frequent phone calls with clients and the employer would monitor an average of two calls per month for each of the employees in that position. However, as the plaintiff's performance deteriorated, the employer began monitoring more calls, up to eight per month. Simultaneously, the plaintiff's supervisor also called her more, even sometimes several times a day, to discuss her performance. At a certain point, the plaintiff alleged that her health had begun to deteriorate. She took a leave of absence and never returned to work.

The plaintiff alleged that these measures constituted harassment because the additional oversight, evaluations and multiple phone calls were excessive. Moreover, she claimed that the evaluations did not reflect her true performance and that she was not given tools to improve. Finally, she claimed that the employer called her frequently once she was away on a leave of absence, which added to her stress.

It was decided in this case that there was no psychological harassment, despite the fact that the plaintiff's work environment contributed to the deterioration of her psychological health. The commissioner found several contradictions in the plaintiff's testimony and decided that the measures taken by the employer were a legitimate exercise of its right to manage its business. The employee had clear performance issues that she failed to correct. The employer acted appropriately in increasing the amount of supervision and the number of evaluations and giving the employee specific examples of her poor performance. The employer had also offered to allow the plaintiff to select which calls would be monitored, but she had refused. Finally, the commissioner found that the employer's phone calls while to the employee was on leave were made only to ascertain her condition and expected date of return.

While the employer was ultimately not found to have harassed the plaintiff, in order to mitigate disputes and liability in this type of situation, the following best practices should be kept in mind:

• Have procedures in place that dictate how poor work performance will be addressed, especially if additional monitoring is one of the remedial measures used;
• Cite the objective measures of performance when imposing additional oversight on an underperforming employee;
• Give concrete examples of poor performance that justify additional supervision and that the employee can work to improve; and
• Ensure that there is a legitimate managerial reason that is expressly provided for additional oversight or more frequent employee evaluations.

Footnotes

1 Loi sur les normes du travail, LRQ, c N-1.1

2 Michaud v Compagnie d'assurance Allstate du Canada, 2012 QCCRT 0193

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