Psychological harassment at work is proven on a balance of probabilities. The probability balance is equivalent to a percentage of 50+1 (51%). It can be seen as the most credible version between that of the employee versus that of the employer.
It is important to consult a lawyer as soon as you are a victim of psychological harassment so that a professional can guide you in your legal markdowns, namely how to build your case.
We frequently meet with clients who come to our office at the convening stage for a hearing at the Administrative Labour Tribunal. However, it is often too late to rectify the situation of a misaligned file.
How to build a good case against the employer?
First of all, if you are a victim of behavior that does not seem normal to you, it is important to document it well by keeping an event log. Please note that an event log should contain facts, not opinions.
A fact is something that is proven by a concrete means such as witnesses, documents or recordings, while an opinion is not. Also, be aware that an opinion could lead you to a defamation lawsuit against you.
For each event or allegation, the following test must be done: am I able to prove what I am alleging and how will I prove it?
How to prove a situation of psychological harassment?
A case of psychological harassment is neither black nor white. The employer will consistently allege that he acted within his authority to normally manage the activities of his business and that it is the employee’s subjective perception that makes him believe that he is a victim of psychological harassment at work.
Take the case of a worker who asks his employer to participate in training, but is refused by the latter. Has the employer acted within its managerial authority or is it harassment? Would the situation be the same if the employer agreed to pay for everyone’s training except that employee?
The test that will be taken by the judge is that of the reasonable person by asking the following question: would another person who ignored the subjective traits of the person have felt that he was also being treated unfairly?
The Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) often considers that psychological harassment does not meet the criterion of an unforeseen and sudden event occurring during work. However, the Tribunal’s case law is clear on the theory of microtrauma.
The theory of microtrauma
This theory holds that the accumulation of small incidents amounts to an unforeseen and sudden event that is considered a work accident.
It should be noted that psychological harassment can also result from a single event. However, the act must be so serious as to affect a reasonable person who would have found himself in the same situation to the same degree or to a similar degree. We may then find it relevant to look at the employee’s employment history, the assessments on his file as well as the disciplinary meetings.
Reporting a situation of psychological harassment
It should be noted that the employer must have a policy to prevent psychological harassment. In this sense, we must look at what the employer has done to remedy the situation of harassment at work.
We strongly advise you to report a situation of harassment in writing. There is a saying that the words fly away, while the writings remain. Do not hesitate to denounce the situation by registered mail and keep the proof of receipt or ask the employer to write his signature as proof of receipt on a second copy that you will keep in your possession.
Filing an appeal with a lawyer
A case is mounted a little by little bit, but do not hesitate to file a remedy, as much for the protection of your job as for the protection of your psychological health.
The vast majority end up changing their place of employment or applying for reassignment. On the other hand, if you have been off work for one or two years, you are entitled to your income replacement benefits.
You can also claim moral damages, punitive damages, as well as certain expenses, such as the costs of psychotherapy, medication or travel.
You don’t have to put up with gestures, words, or a workplace that bother you and go beyond the normal work environment.
Please note that we accept psychological harassment cases with an hourly rate only.
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