When a complaint of psychological harassment arises in a decentralized workplace, what measures must an employer take to meet its prevention obligations and put an end to the situation? A recent arbitration caselaw¹ provides useful guidance on the limits of informal interventions and the importance of a proactive approach.
The backround
The complainant, a professor employed by the University, claims to have been subjected to psychological harassment in her workplace, primarily by a fellow professor.
The situation arose in a complex and decentralized university environment, where several decisions fall within the purview of the departmental assembly and a research centre.
The internal complaint and the University’s response
In February 2022, the complainant filed a psychological harassment complaint through the University’s internal reporting mechanism.
Following the complaint, a meeting was held with the Director of Human Resources. At that point, the complainant felt she had been heard and understood that her case was being handled. She subsequently provided various documents to further explain the dynamics within the department.
In the weeks that followed, the University acknowledged the existence of concerning factual elements and explored certain possible courses of action. Mediation was considered as a potential avenue, and a civility awareness campaign was also identified as a tool that could be used with members of the departmental assembly.
A meeting was then held with the complainant and her union representative to discuss the terms of a possible mediation with the main respondent. The latter was subsequently met with in turn. After being informed of the context and parameters of the proposed process, he quickly expressed reluctance to participate in mediation, taking the position instead that the complainant had herself engaged in inappropriate conduct toward him and several colleagues. He nevertheless undertook to behave respectfully in his interactions with his colleagues.
The University then informed the professor of this position and advised her that recommendations had been made regarding civility issues during departmental assembly meetings. It also asked whether she intended to pursue her complaint, which the complainant declined to do.
The University’s interventions then came to an end.
The grievance
In June 2023, the complainant ultimately filed a grievance.
She alleged that she had been subjected to psychological harassment in her workplace and criticized the University for failing to take reasonable measures to prevent the harassment and put an end to it.
For its part, the University maintained that it had fulfilled its obligations, notably by adopting a prevention policy that was distributed to employees, implementing awareness campaigns, and offering training.
The University also argued that its ability to intervene effectively was limited by its complex administrative structure.
The arbitrator’s analysis
Applying the criteria set out in the Act respecting labour standards, the arbitrator concluded that the complainant had been subjected to psychological harassment.
In his analysis, the arbitrator examined the measures taken by the University to put an end to the situation. In this regard, the arbitrator acknowledged that the University had not remained inactive. Certain steps had been taken, including civility training, and the University’s representatives appeared to be aware of the seriousness of the situation. He also noted that their good faith was not in question.
That said, the arbitrator found that the interventions carried out were insufficient to allow the University to meet its obligation to put an end to the harassment. In particular, he noted that the University appeared to be limited in its ability to intervene because of the decentralized structure of the university environment, including with respect to departments, departmental assemblies, and the research centre. While these constraints partly explained the difficulty of taking action, they did not justify the insufficiency of the measures implemented.
Rather, the arbitrator found that the University’s interventions, although real, remained too limited to respond meaningfully and effectively to the situation that had been reported. He specified that a formal investigation is not always required, but that the chosen intervention, whatever form it takes, must be capable of concretely protecting the complainant who is the victim of harassment.
In this case, however, despite the failure of the proposed mediation due to the refusal of the main respondent, the University did not initiate a formal investigation or implement a sufficiently structured process to verify the allegations and intervene appropriately.
More specifically, the arbitrator identified the following shortcomings:
- insufficient prevention mechanisms and uneven dissemination of the applicable internal policies;
- the absence of a formal investigation despite the filing of a written complaint;
- reliance on informal, unstructured interventions without documented follow-up;
- tolerance of certain individuals’ refusal to participate in the training offered;
- insufficient psychological support for the complainant, despite an obvious situation of distress.
The arbitrator therefore ordered the University to take appropriate measures to put an end to the situation.
He also ordered the University to compensate the complainant for all damages suffered as a result of the harassment, with interest and the additional indemnity.
