Bullying in the Workplace, February 7, 2012 - Ontario Nurses ...

Bullying in the WorkplaceKaren Sandercock, Human Rights & Equity SpecialistNicole Butt, ONA Litigator

The Facts• Bullying identified as key issue by ONA HR&ERepresentatives• Profoundly destructive phenomenon for victims andco-workers• The goal is to intervene in early stages beforebullying escalates2

Objectives• Provide a resource tool for HR&E Reps to assistONA members experiencing or witnessing bullying• Highlight the assistance & support available fromONA Bargaining Unit leadership, Labour RelationsOfficers and elected Board Representatives3

What is Bullying in the Workplace?• Repeated incidents or a pattern of behaviour that isintended to intimidate, offend, degrade or humiliatea person or group of people.• Bullying = mobbing, horizontal or lateral violence,nurse-to-nurse hostility, relational aggression• Usually involves a power imbalance• Bullies can feel angry, insecure & threatened ORarrogant & superior to others• Victims can be vulnerable, lacking confidence &power OR confident, competent & popular4

Bullying in the Nursing Workplace• Bullying more prevalent in nursing than other areas inhealthcare sector• Nurses experiencing a higher rate of burnout are more likelyto abuse other nurses• 50% of Canadian nurses report emotional abuse at work.46% of Canadian nurses report they were exposed to hostilityor conflict from co-workers. (Stats Canada, 2005)• 160 RNs surveyed at University Health Network survey: 95%witnessed horizontal violence, 71% were the target (Mallette,2010)• In the U.S., 60% of newly registered nurses leave their firstposition within 6 months due to abuse from a co-worker.(Griffen, Journal of Continuing Education in Nursing, 2004)5

Examples of Bullying• 3 categories of behaviours:– Personal attacks– Erosion of professional competence andreputation– Attacks through work roles and tasks• Constructive criticism is not bullying• Fine line between strong management and bullying6

Examples of Bullying Behaviours:7– Refusing to speak to a colleague, being curt,giving the “silent treatment”– Dismissive behavior such as eye-rolling,sarcasm, ridicule, making a person the target ofpractical jokes– Making derogatory, belittling or insultingcomments (especially in front of others)– Impatience with questions, refusal to answerquestions– Unwarranted or invalid criticism, excessivelymonitoring another’s work

Examples of Bullying Behaviours(Cont’d)8– Blaming, scapegoating an individual who is notresponsible for the problem– Sabotaging, withholding necessary information orpurposefully giving the wrong information– Taking credit for another person’s work withoutacknowledging their contribution– Spreading malicious rumours, gossip, assigningdenigrating nicknames– Excluding or isolating someone socially– Refusing to work with a colleague– Verbal abuse (yelling, shouting or using profanity,offensive or abusive language)

Examples of Bullying Behaviours(Cont’d)– Visual abuse (finger pointing, fist shaking,hostile facial expressions, threatening bodylanguage)– Threats (retribution, physical or legal)– Threatening or intimidating physical contact,actual or threatened assault– Encouraging others to harass an individual– Undermining or deliberately impeding a person'swork– Removing areas of responsibilities without cause9

Examples of Bullying Behaviours(Cont’d)– Setting up an individual for failure (unreasonableworkload, deadlines, changes)– Denial of praise for good work– Blocking or denying training and professionaldevelopment opportunities– Intruding on a person's privacy by pestering,spying or stalking– Tampering with a person's personal belongingsor work equipment10

Bullying Scenarios• RN to RN– Daily interrogations of new nurse by veteran nurse duringverbal report– Group of nurses gossip, criticize, make unfoundedcomplaints to manager about the work performance ofnurse with disability accommodation• PSW to RN– PSW staff undermine RN’s ability to perform her job• Manager to RN– using policies and management practices in an abusivemanner, giving poor evaluation for “speaking up”11

Disruptive Physician Behaviour• Disruptive physician behaviour encompasses allsorts of communication and behaviour by aphysician that affects nurses’ and allied healthmembers’ practices and/or well being,patient/resident/client care and may interfere withthe health facility’s ability to operate in an orderlyway.(ONA Guide to Managing Disruptive Physician Behaviour, 2010)12

Examples of Disruptive PhysicianBehaviour• Sudden and unpredictable outbursts• Late or unsuitable replies to pages• Overly rigid control of patient care and rejection of collegialinput• Blaming others for adverse outcomes• Imposing idiosyncratic requirements on staff having nothingto do with quality patient care• Public derogatory comments about the quality of care• Inappropriate medical record entries concerning staff /qualityof care• Degrading and demeaning comments to staff or patients13

Impacts of Bullying14• Robs employees of the right to dignity at work• Destroys trust and creates anxiety• Isolation and ostracism at work• Loss of self-esteem, self-confidence• Inability to concentrate, low morale and decreasedproductivity• Nausea, headaches, stomach aches, insomnia, irritability,depression, anxiety, suicide• Increased absenteeism, sick leave, resignation• Leave the nursing profession• Co-workers experience stress, anxiety and fear becoming thenext target• Risk to patient safety

Factors Contributing to Bullying• Personality traits of perpetrators and victims• Power imbalance• Hierarchy in healthcare institutions• Organizational environment - stress and frustration• Organizational culture – poor management styles,poor leadership15

Strategies for Victims16• Regain control: don’t blame yourself• Confront bully in the early stages, if comfortable• Prepare verbal responses in advance• Avoid the bully in chronic stages of bullying• Report incidents• Make complaint under workplace policy• Get support from family, friends, unionrepresentatives• Access resources on bullying• Keep a written record• Release anger in healthy ways

Strategies for Colleagues• Intervene early• Speak up on behalf of victim• Stand by the victim after an attack to offer support• “Code Pink” : circle the offending person as aunified group• Report incidents• Stop gossip about the victim17

Strategies & Obligations of Employer• Education for all staff re: respectful vs. bullying behaviour• Workplace policy defining unacceptable behaviour andconsequences• Procedure for reporting behaviours and investigatingcomplaints• Training for leaders on managing disruptive and inappropriatebehaviours• Holding individuals accountable for behaviour• Impartial third party to assist with resolution if necessary• Create a culture of respect and dignity: assertivecommunication• “Nurses nurture their own.” – Christine Miadineo, RN, BSN18

Assisting ONA Members19• Spend time with member to get full story• Identify bullying• Review strategies (see slide #15)• Coaching & support if early stages• Strongly encourage reporting of incidents and offer tobe present• Assist member with complaint process under workplacepolicy – Art. 3.04(d), Hospital Collective Agreement• Consult with Bargaining Unit leadership re: filinggrievances• Encourage member to educate herself about bullying• Refer to appropriate resources (sick leave, EAP)

Member-to- Member Harassment• Separate ONA representatives for each member• Explain process and provide support to eachmember• Scope of ONA Policy 16.28 - Discrimination andHarassment during Union Business or Activities• Raise general issues at Bargaining Unit meetings20

Relevant Legislative andContractual Provisions• Ontario Human Rights Code• Bill 168-Occupational Health and Safety Act• Criminal Code• Collective Agreement21

Ontario Human Rights Code• s.5 (2) Every person who is an employee has aright to freedom from harassment in the workplaceby the employer or agent of the employer or byanother employee because of race, ancestry, placeof origin, colour, ethnic origin, citizenship, creed,age, record of offences, marital status, familystatus or disability.• s. 7(2) Every person who is an employee has aright to freedom from harassment in the workplacebecause of sex by his or her employer or agent ofthe employer or by another employee.22

Definition of Harassment under theOntario Human Rights Code• s.10 “harassment” means engaging in a course ofvexatious comment or conduct that is known orought reasonably to be known to be unwelcome;23

Elements of Harassment under theOntario Human Rights CodeIn order to successfully prove that an employee hasbeen harassed, contrary to the Human RightsCode, the employee must prove:• that there was a course of comment or conduct• the comment or conduct was vexatious• the comment or conduct was known to beunwelcome• or objectively should have been known to beunwelcome24

Occupational Health and Safety Act-“Bill 168”• Amended in June 2010• Added definitions of workplace harassment andworkplace violence• Employers are required to create policies to preventand address workplace harassment and violence25

OHSA Definitions• “workplace harassment” means engaging in a course of vexatiouscomment or conduct against a worker in a workplace that is known orought reasonably to be known to be unwelcome;• “workplace violence” means,• (a) the exercise of physical force by a person against a worker, in aworkplace, that causes or could cause physical injury to the worker,• (b) an attempt to exercise physical force against a worker, in aworkplace, that could cause physical injury to the worker,• (c) a statement or behaviour that it is reasonable for a worker tointerpret as a threat to exercise physical force against the worker, ina workplace, that could cause physical injury to the worker.26

OHSA-Requirement to Create Policies• The OHSA requires employers to prepare twopolicies:– policy with respect to workplace violence– policy with respect to workplace harassment• These policies are to be reviewed at least once ayear.• The Employer must also develop a program toimplement each policy.27

Criminal Code• Section 264 of the Criminal Code containsprovisions relating to criminal harassment.• No person shall, without lawful authority andknowing that another person is harassed or isreckless as to whether the other person isharassed, engage in conduct referred to insubsection (2) that causes that other personreasonably, in all the circumstances, to fear for theirsafety or the safety of anyone known to them.28

Criminal Code (Cont’d)• The conduct mentioned in subsection (1) consists of– Repeatedly following from place to place the otherperson or anyone known to them;– Repeatedly communicating with, either directly orindirectly, the other person or anyone known to them;– Besetting or watching the dwelling-house, or placewhere the other person, or anyone known to them,resides, works, carries on business or happens to be;or– Engaging in threatening conduct directed at the otherperson or any member of their family.29

Criminal Code-Elements of Offence ofCriminal Harassment• Crown must provide beyond a reasonable doubt– The accused engaged in conduct set out in s.264– The complainant was harassed.– The accused knew the complainant was harassed or wasreckless or willfully blind as to whether the complainantwas harassed.– The complainant feared for her safety or the safety ofanyone known to her.– The complainant’s fear was in reasonable in thecircumstances.30

Hospital Collective Agreement-Article 3.03• 3.03 It is agreed that there will be nodiscrimination by either party or by any of thenurses covered by this Agreement on the basis ofrace, creed, colour, national origin, sex, sexualorientation, marital status, family status, age,disability, religious affiliation, or any other factorwhich is not pertinent to the employmentrelationship.31

Hospital Collective Agreement-Article 3.0432• 3.04 Incorporates by reference the harassment provisions of theOntario Human Rights Code (articles 5.2, 7.2 and 7.3)• (d)The parties recommend and encourage any employee whomay have a harassment or discrimination complaint to followthe complaints process as set out in the employer’sharassment policies and process.• (f) Where a nurse requests the assistance and support of the unionin dealing with harassment or discrimination issues, suchrepresentation shall be allowed.• (g) A nurse who believes that she or he has been harassed contraryto this provision may file a grievance under Article 7 of thisAgreement.NOTE: “Harassment” means engaging in a course of vexatiouscomment or conduct that is known or ought reasonably to beknown to be unwelcome.” Ref: Ontario Human Rights Code,Sec.10(1).

Hospital Collective Agreement-Article 6.05• 6.05 “Workplace harassment” meansengaging in a course of vexatious comment orconduct against a worker in a workplace that isknown or ought reasonably to be known to beunwelcome”. Ref: Occupational Health and SafetyAct, Sec. 1(1).33

Homes Collective Agreementsummaryof Article 4• Each individual has the right to work in anatmosphere which promotes respectful interactionsand is free from discrimination, harassment andaggression.• Quotes directly from the Ontario Human RightsCode, and specifically references the definition ofharassment contained in the OHRC.34

Forums• Ontario Human Rights Tribunal• Complaints under the Occupational Health andSafety Act• Criminal courts• Policy• Grievance-arbitration35

Ontario Human Rights Tribunal• Member may file a complaint at OHRT• ONA does not represent member at tribunal• OHRT will likely defer consideration of thecomplaint until arbitration process has beencompleted36

Ministry of Labour• The OHSA treats workplace violence and workplaceharassment differently.• In cases of violence and/or threats of violence, a workercan ask a Ministry Inspector to investigate the complaintand issue an order against the Employer.• In cases of harassment, the Ministry only has theauthority to determine if the harassment policy orprogram complies with the OHSA. It does not have theauthority to investigate the actual complaint and issuean order against the Employer for failure to provide aworkplace free from harassment.37

Employer Policy• Members should be encouraged to file a complaintunder the Employer’s violence and harassmentpolicies.• Failure to file a complaint may have a detrimentalimpact on any grievance/arbitration.38

Grievance-Arbitration• Grievances should be filed, where there is evidenceof harassment and/or violence in the workplace.• Grievance should reference the Ontario HumanRights Code, the Occupational Health and SafetyAct, articles 3 and 6 of the Hospital collectiveagreement and the management rights clause.39

Burden/Onus of Proof40• Issue during arbitration: did the Employer fail toprovide a harassment free workplace, in violation oflegislation and collective agreement?• In order to succeed, ONA must prove:– The harassment and/or violence factually occurred (look tothe applicable definitions in legislation and collectiveagreement); and– The Employer’s response to the complaint wasinadequate.• *If the Employer’s response to the complaint wasadequate, the grievance will not succeed, evenwhere harassment has been shown to haveoccurred.

Physician to Member Harassment• Challenge specific to ONA work environment• Amendments to OHSA partially a reaction to theLori Dupont murder• Article 3.08 provides that the Hospital mayincorporate tools, definitions and processes formthe College of Physicians and Surgeons’Guidebook for Managing Disruptive PhysicianBehaviour.• Nfld decision-arbitrator found he had jurisdiction toorder a hospital to remove a doctor’s privileges.41

Recent Case Law• City of Kingston and CUPE, Local 109 (decision of ElaineNewman), dated August 2011– First decision to consider the Bill 168 amendments to theOHSA– Found that verbal threat constituted workplace violence“The workplace violence is the utterance of the words. Thereneed not be evidence of an immediate ability to do physicalharm. There need not be evidence of intent to do harm. Noemployee is required, as the receiver of the words, to live orwork in fear of attack. No employee is required to look overtheir shoulder because they fear that which might follow.”42

Resources on BullyingONA Resources:• Frequently Asked Questions: Bullyinghttp://www.ona.org/human_rights_equity/faq.html• Guide on Managing Disruptive Physician Behaviourhttp://www.ona.org/documents/File/guides/Guide_ManagingDisruptivePhysicianBehaviour_201006.pdf• ONA Workshop “Harassment, Mobbing, and Bullying”http://www.ona.org/workshop_catalogue.php?cID=2343

Resources on Bullying (Cont’d)Books:• Ending Nurse-to-Nurse Hostility: Why NursesEat Their Young and Each Other by KathleenBartholomew, RN, MH. (HCPro, 2006).• The Bully at Work by Gary and Ruth Namie(Sourcebooks, 2003).• When Nurses Hurt Nurses: Recognizing andOvercoming the Cycle of Bullying by CherylDellasega, PhD, CRNP (Honor Society of Nursing,Sigma Theta Tau International, 201144

Resources on Bullying (Cont’d)Articles:• A Matter of Respect and Dignity: Bullying in theNursing Profession by Laura Stokowski, RN, Editor,Medscape Ask the Experts Advanced Practice Nursehttp://www.medscape.com/viewarticle/729474_245Guides:• Bullying in the Workplace: A handbook for theworkplace (Ontario Safety Association forCommunity and Healthcare, 2009) Available onwebsite www.osach.ca

Resources on Bullying (Cont’d)Websites:• www.bullyonline.org• www.bullyinginstitute.org• www.workplacebullying.org• www.unbf.ca/towardarespectfulworkplace46