Resolution of Workplace Conflict A Legislated Approach as Compared to a Proactive

and Preventative Approach

Kim Squires, B.A., B.Ed, M.B.A., CHRPDirector Human ResourcesSaint Mary’s UniversityHalifax, Nova Scotia

Bridget Brownlow, B.A, Con.Res.CertConflict Resolution AdvisorSaint Mary’s UniversityHalifax, Nova Scotia

Tara Erskine, B.A., LL.B, CHRPPartner, McInnes CooperPurdy’s Wharf Halifax, Nova Scotia

A review of legislation across Canada A comparison between a legislative approach and a

proactive approach Supporting criteria for the introduction and implementation

of conflict resolution services Organizational Conflict: Causes & Impact Informal Resolution of a Complaint Formal Resolution of a Complaint Challenges Question and Answer

Today’s presentation will focus on the following areas:

Legislative Approach

Quebec is the only province in Canada that prohibits psychological harassment in the workplace with legislation

Other provinces such as Ontario, Nova Scotia, Saskatchewan and Alberta have legislation relating to Workplace Violence or Occupational Health and Safety that may serve to protect against some instances of workplace bullying

In September 2003 a bill regarding psychological harassment in the workplace was introduced to the House of Commons but was later defeated

There remains an interest at the Federal level of passing legislation against workplace bullying, as was noted in a 2006 report by Human Resources and Skills Development Canada

Quebec’s legislation against psychological harassment in the workplace came into effect in May, 2004

This legislation is the first of its kind in North America Psychological harassment is defined as:

“Any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affect an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee”.

Examples of suggested forms of psychological harassment that would fall under this legislation are: rude, degrading, or offensive remarks, intimidating gestures, discrediting the employee, belittling the employee, and isolating the employee

Quebec Legislation on Psychological Harassment

The goal of the Quebec Labour Standards Commission has been to resolve 95% of complaints by informal negotiation

Quebec employers have been challenged by employees using this legislation as a means to retaliate against the employer

Quebec employers required to provide employees with negative performance appraisals have been accused of psychological harassment

The boundary between bad management and psychological harassment is difficult to distinguish with the Quebec legislation

Quebec Legislation on Psychological Harassment

The Common Law implies in every employment contract that: “The employer will treat the employee with civility, decency, respect and dignity.” - Lloyd v. Imperial Parking Ltd. (Alberta LR)

There is also a duty to prevent an employee from being harassed by other co-workers: “An employer’s failure to prevent the harassing behaviour of an employee by co-employees … has been held to be capable of amounting to constructive dismissal.” – Stamos v. Annuity Research & Marketing (Ont, SCJ)

Common Law Obligations

Arbitral tribunals have also determined that differential treatment may become “personal harassment.” In Toronto Transit Commission v. Amalgamated Transit Union (Ont Arb), the employer was held liable for $25,000 in damages for harassment by treating an employee differentially.

Liability in the University context

Common Law Obligations

Responsibilities: Duty to ensure fair, civil, decent, and respectful treatment of

employees Duty to ensure work environment does not become hostile,

embarrassing, or forbidding Work environment is conducive to employee’s health and well-being

A breach of these responsibilities may lead to…

Liabilities: Constructive dismissal damages Tort damages relating to emotional harm suffered Special damages relating to any other economic losses

Common Law Responsibilities and Liabilities

Assess the Situation Perform an assessment of your workplace and determine what action

must be taken to ensure that it is an environment that is civil, respectful, and decent towards all employees

Training and Education Develop and implement training programs for employees, supervisors,

and managers Ensure that employees are aware of their right to a civil, respectful, and

decent work environment Ensure that supervisors and managers are aware of their

responsibilities of providing a civil, respectful, and decent work environment

Policy Development and Implementation Develop and implement a policy concerning harassment in the

workplace which outlines employee rights and employer obligations

A Proactive Approach to Limiting Liability

Conflict Management at Saint Mary’s University

Saint Mary’s University first introduced internal conflict management services in 2004

To date the program has proven to be very successful having provided consistent and timely conflict resolution support to students, faculty and staff

Introduction

Support for Conflict Resolution at SMU

Policies In 2005 the University Board of Governors and Executive Management Group

unanimously approved “The Policy on the Prevention and Resolution of Harassment and Discrimination”

“Violence in the Workplace: Prevention and Response” (2006)

Programs Partners Against Racism (PAR) Remembrance and Action on Violence Against Women Peer Mediation in Student Residence Students for Teaching Peace Saint Mary’s Conflict Management Programs (Professional and Executive

Development) Saint Mary’s Department of Athletics anti-bullying campaign Extensive training in conflict resolution offered on a regular basis to students,

faculty and staff Peaceful Schools International

Facts Effective conflict resolution programs reduce costs associated with

poorly managed conflict by 50% - 80% (Karl Slakieu and Ralph Hasson. "Controlling the Costs of Conflict". San Francisco:Jossey-Bass, 1998)

For more than 10 years conflict resolution training has been afforded to many elementary, junior high and high school students locally, regionally and nationally.

Under the Public Services Modernization Act (Bill C-25) legislated all federal workplaces to develop and implement interest-based conflict management programs

Between April 2004 – April 2006 the conflict resolution program has assisted in the facilitation and successful resolution of 26 student related conflicts, 45 faculty related conflicts and 23 staff related conflicts. One multi-party formal complaint was also ultimately resolved through conflict resolution.

Support for Conflict Resolution at SMU (continued)

differing expectations competing goals conflicting interests conflicting values role confusion organizational change unsatisfactory

interpersonal relations

skill deficits psychopathology confusing communications unresolved prior conflict lack of conflict

management options scarce resources malicious intent

Organizational Conflict: Causes

low morale increased absenteeism increased sick leave increased use of grievance procedures increase in legal fees sabotage work to rule

Organizational Conflict: Impact

WEAK SYSTEMS

PREDICTABLE CONFLICTS

+ = HIGH COSTS

The Cost Equation

Four Conflict Management Options (within organizations)

Avoidance

Power Play / Force

Higher Authority

Collaboration

Organizational Conflict

Avoidance

Activities: “Wait and see”

Avoid situation

Decision Making: By chance

Primary Focus: Isolation from the problem

Primary Outcome: Unpredictable

Higher Authority

Activities: Internal (line of authority)

External (courts, litigation)

Decision Making: By third/authorized party

Primary Focus: Right and wrong according to objective criteria

Primary Outcome: Win/lose

(lose/lose)

Power Play / Force

Activities: Political action

Strikes, civil disobedience

Physical force

Decision Making: By force

Primary Focus: Power Contest

Primary Outcome: Win/lose

(lose/lose)

Collaboration

Activities: Individual Initiation

Negotiation (via direct talks)

Mediation (formal and informal)

Decision Making: Individual initiative: by a party in light of interests of all parties

For both negotiation and mediation: by the parties

Primary Focus: Integrative solution based on interests and other facts

Primary Outcome: Win/win

Rationale

How is the informal resolution procedure started?

What is the role of the Conflict Resolution Advisor or other individuals receiving the complaint in the informal resolution process?

What is the procedure for informal resolution through conflict resolution?

Informal Resolution of a Complaint

How long is this process?

What are the possible outcomes?

What happens if an agreement of resolution is violated?

What if the informal resolution process is unsuccessful?

What are the exclusions from the informal resolution

procedure?

Informal Resolution of a Complaint(continued)

Prohibited Grounds of DiscriminationNova Scotia Human Rights Act

Race Ethnic, national or aboriginal origin Family status Marital status Source of income Political belief, affiliation or activity An irrational fear of contracting an illness or disease Colour Age Religion Creed Sex Sexual orientation Physical disability or mental disability

Formal Resolution of a Complaint

Challenges for Saint Mary’s University

Communication and dissemination of information on workplace harassment can be challenging in a large institution

Resistance to new initiatives / organizational change is challenging for some students, faculty and staff

Consequences for psychological harassment are not backed by provincial / federal legislation

Recognition that it can be very difficult to prove allegations of psychological harassment

Viability of the formal process

Questions and Discussion

http://www.smu.ca/administration/hr/documents/Harassment_policy.pdf

http://www.smu.ca/administration/hr/documents/ViolenceintheWorkplacePolicyFinal-ApprovedbyEMG29Mar06.pdf