An Ounce of Prevention is Worth a Pound of Response: The W-5’s of Managing Conflict & Preventing Harassment, Bullying & Violence @ Work
December 7, 2015
By Ryan Baxter, Lawyer at McInnes Cooper,
Stephanie Sheppard, Partner at McInnes Cooper
Violence has become an unfortunate reality in current society, and the workplace is not immune. With more people spending more time at work, more technology providing more access to those employees, and more employees under more pressure to balance increasing demands of work and home, the risk of violence incidents at work loom larger. But what ends in a “violent” incident often began with what seems to be an innocuous workplace conflict or intolerance that – unaddressed, perhaps – escalated until its violent explosion. And while the employer might respond well, even admirably, to that violent explosion, an ounce of prevention is worth even the best pound of response. Here’s the why, what, who and where of managing workplace conflict and how employers can prevent it from escalating into bullying, harassment or violence.
Why should employers deal with workplace conflict? Because there is risk to the employer of not doing so. Unresolved workplace conflict can escalate, sometimes quickly, into harassment and/or bullying, and ultimately to violence – and even injury or loss of life: “Violence in the workplace begins long before fists fly or lethal weapons extinguish lives. Where resentment and aggression routinely displace cooperation and communication, violence has occurred.” US Arbitrator Fields in USPS and NALC, NALC GTS 2348. The key risks to the employer of not addressing workplace conflict at all, or doing so inadequately are:
- Legal Risk. Employers are legally obligated to take steps to prevent it, or to act when it occurs:
- Occupational health and safety legislation typically imposes a general obligation on employers to take reasonable precautions to protect employee health and safety at or near the workplace. Several provinces, including NL, NS and PEI, have also adopted regulations to specifically address workplace violence by requiring certain employers to conduct a violence risk assessment and develop a violence prevention plan. NOTE: Effective April 1, 2019, employers of New Brunswick employees must comply with new occupational health and safety law requirements specific to workplace violence and harassment.
- Human rights legislation prohibits employers from discriminating against any person on the basis of any protected ground in hiring or in employment terms; this includes harassment based on a protected ground.
- Collective agreements implicitly incorporate the legal obligations imposed under all such legislation by law.
- Financial Risk. Workplace conflict has a significant negative impact on productivity and profitability. Bullying and harassment can lead to: impaired concentration or decision-making ability; distress; anxiety; sleep disturbances; substance abuse; suicidal thoughts or actions; and physical illness. This can reduce work performance, create safety hazards due to lack of attention, and increase employee turnover and absenteeism. And employees working in an environment where others are subject to harassment and bullying can suffer similar consequences. Managers must use their time to deal with workplace conflict. Finally, if an employee seeks redress from her employer, that employer will be put to the financial expense, time and opportunity costs of dealing with the issue, and the legal and financial risks of the outcome, whether or not the employee succeeds.
What is workplace violence? Workplace violence can take many forms; it’s not limited to physical attacks or assaults, but also includes:
- Verbal threats of violence.
- Applications and threats of force.
- Carrying a weapon.
- Intimidation and aggressive behavior.
- Harassment, including both that based on a ground protected under human right legislation and “personal” harassment, and bullying, including cyber-bullying.
- Verbal and emotional abuse.
- Sexual touching or suggestions.
Who is the typical workplace bully – and the typical target? Anyone – including employees, supervisors, managers, visitors, clients, family members, spouses, and friends – can be the workplace bully or her target. But they often have some key characteristics:
- Bullies tend to be insecure and often have poor social skills and lack empathy. They intimidate others to fulfill their need for control, which is the root of harassment and bullying.
- Targets, perhaps surprisingly, tend to be capable, dedicated, well-liked by co-workers, able to co-operate, but have a non-confrontational interpersonal style.
Where is the “workplace” for the purposes of “workplace” harassment, bullying and violence? For these purposes, the “workplace” goes beyond both the four walls of the employer’s premises and “working hours”, to any context with a connection to work. And for the purposes of technology and social media, when other employees are included in such electronic communications, the comments are considered to be made in the “workplace”.
How do employers prevent and manage workplace conflict at all, and prevent it from escalating into bullying, harassment – or violence – specifically. An understanding of the underlying causes of workplace conflict, harassment, bullying and violence is an essential starting point. Once you’ve done that, here are six key steps to prevent and manage workplace conflict:
- Take a good, hard look at yourself. It’s hard to know how to get there if you don’t know where you are. So figure that out. Undertake an evaluation of the history of workplace conflict in all forms and levels, from conflict to harassment, bullying, and violence, at specific worksites in your industry generally and in your organization specifically to get a sense of the specific issues of which you will need to be mindful and where the risks are. Review all of the existing safety and security policies and procedures that related to the issue to determine where the gaps are. Use these evaluations as you either build a new program, or evaluate and rejig an existing one.
- Develop, implement and enforce workplace conflict, harassment, bullying and violence policies. Deal with the full spectrum of workplace conflict, whether you do so through individual policies or in a single policy. A sensible policy(ies) will include these key points:
- Clear communication that the employer will not tolerate the behavior.
- Mandatory reporting of incidents with confidentiality and protections from reprisals, and mandatory reporting of all physical assaults to police.
- Psychological assessments of perpetrators of violence.
- Designation and training of a response team.
- And don’t stop with writing the policy. Implement it by communicating it, making it accessible and visible to all employees, and make training on it mandatory for every employee. Enforce it by responding to all reports or complaints of violence – and make the response visible. Periodically audit the workplace to determine potential sources of violence, review and revise the policy, and revisit training with employees.
- Train supervisors and managers to recognize and manage conflict. Appropriate training is part and parcel of effective policy implementation. On the front-lines, managers and supervisors are ideally placed to recognize and manage interpersonal conflict early, and help prevent it from escalating. This includes addressing workplace conflict and implementing and enforcing employer’s policies. It’s important managers and supervisors are familiar and comfortable with both formal resolution tools under the policy (ies), and informal tools to deal with conflicts at an early stage, such as one-on-one coaching, mediation and facilitated group process, and how to choose the appropriate one for the circumstances.
- Broaden your educational horizons. Educating all employees about workplace conflict is a minimum, but there are more opportunities. For example, as workplaces become more diverse, cross-cultural misunderstandings can lead to actual or perceived harassment and bullying; cross-cultural education can raise awareness and support of cross-cultural differences, and help avoid or ease any associated tension and conflict.
- Invest in employee resources. Many of today’s employees spend a great deal of time and energy at work, both physically and during their “off” hours because of the ability of technology to make them available “24/7”. And many are subject to tremendous stress at work – and at home. To learn more about the “sandwich generation”, read McInnes Cooper’s: The Sandwich Generation – 5 Employer FAQs About “Family Status” Accommodation. Invest in additional resources to help employees deal with stress and conflict, whether personal or work-related. For example, offer employees an Employee (or Family) Assistance Program, and consider making it available to all employees, including probationary, permanent and contract employees, interns, and so forth.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour & Employment Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it. © McInnes Cooper, 2015. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
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